710.1 
M74u 


Studies  in  Land  Economics 


Research    Monograph    No.    i 
Richard  T.  Ely,  Editor 


S. 


cOhe 

Use  of  Deed  Restrictions 

in  Subdivision 

Development 


By  Helen  C.  Monchow 


Published  By 

The  Institute  for  Research  in 

Land  Economics  and  Public  Utilities 

337  East  Chicago  Avenue 

CHICAGO,  ILLINOIS 

1928 
IKE  LIBRARY 
0F1 
UNlYERStir  OF  I! 


ILLINOIS  HISTORICAL  SURVEY 


LIBRARY  OF  THE 

UNIVERSITY  OF  ILLINOIS 

AT  URBANA-CHAMPAIGN 


710.1 

M7^u 


iujkqis  mxMki  si 


ixoiB  msTonrcAz 


Digitized  by  the  Internet  Archive 

in  2012  with  funding  from 

University  of  Illinois  Urbana-Champaign 


http://www.archive.org/details/useofdeedrestricOOmonc 


cUhe 

Use  of  Deed  Restrictions 

in  Subdivision 

Development 

By  Helen  C.  Monchow 


Published  By 

The  Institute  for  Research  in 

Land  Economics  and  Public  Utilities 

337  East  Chicago  Avenue 

CHICAGO,  ILLINOIS 

1928 


COPYRIGHT  1928 

BY   THE 

INSTITUTE  FOR   RESEARCH   IN   LAND   ECONOMICS 

&  PUBLIC   UTILITIES 

CHICAGO,  ILLINOIS 


TABLE   OF   CONTENTS 


Foreword ii 

Author's  Preface iii 

Chapter     I.   Deed  Restrictions  in  Controlling  Land  Development 1-7 

II.    The  Developer's  Plan  as  a  Basis  for  Deed  Restrictions 8-15 

Chapter  III.    The  Legal  Aspects  of  Deed  Restrictions 16-26 

Chapter  IV.  Restrictive  Clauses  Concerning  Type  and  Use  of  Structures  and  Lot 

Area 27~45 

Chapter    V.  Other  Clauses  Dealing  with  Duration,  Administration  and  Racial  Re- 
strictions  46-71 

\  Valuation  of  Deed  Restrictions  as  a  Control  Device 72_78 

Table  of  Dec  Is  Analyzed 79 

Table  of  Cases  Cited 81 

Index 82 


T 


59541 


FOREWORD 

With  this  study  the  Institute  begins  the  publication  of  two  series  of  research  mono- 
graphs, one  in  the  field  of  Land  Economics  and  the  other  in  Public  Utility  Economics. 
Heretofore,  the  results  of  research  by  members  of  the  Institute  staff  have  appeared  in  its 
own  Journal  of  Land  and  Public  Utility  Economics,  other  periodicals  and  books.  These 
series  of  research  monographs  form  an  intermediate  way  of  publishing  the  results  of  its  inves- 
tigations. The  Journal  appears  quarterly  and  carries  short  articles.  The  books  that  have 
been  published  survey  a  considerably  larger  field.  The  research  monographs  will  be  media 
for  certain  phases  of  larger  research  projects  more  ample  than  those  covered  by  Journal 
articles  and  yet  more  restricted  than  those  in  books.  They  will  be  published  from  time  to 
time  as  the  material  ripens  rather  than  regularly  or  periodically. 

Cooperative  research  is  an  established  policy  of  the  Institute.  Although  each  individual 
is  responsible  for  the  research  work  that  he  does,  he  has  full  opportunity  to  confer  with 
other  members  of  the  staff  and  obtain  their  suggestions  and  various  points  of  view.  The 
result  is  that  each  publication  of  the  Institute  of  whatever  length  represents  to  a  certain 
degree  the  combined  efforts  of  the  staff  together  with,  in  certain  cases,  the  advice  of  informed 
persons  not  affiliated  with  the  staff.    This  monograph  is  no  exception  to  this  policy. 

Richard  T.  Ely,  Director, 
Institute  for  Research  in 
Land  Economics  and  Public  Utilities. 


AUTHOR'S    PREFACE 

From  the  standpoint  of  controlling  development  the  pattern  of  our  modern  cities  is 
determined  largely  by  the  activities  of  two  groups,  the  realtors  and  the  city  planners.  Each 
seeks  to  establish  through  legal  means  the  plan  it  has  conceived  for  the  area  in  question. 
Thus  city  planning,  zoning  and  subdivision  control  ordinances  together  with  private  con- 
tracts in  the  form  of  deed  restrictions  make  up  the  composite  of  control  under  which  our 
cities  are  growing  up.  This  study  of  deed  restrictions  represents  therefore  only  one  phase 
of  the  larger  subject  of  control  over  the  development  of  urban  land. 

approach  is  essentially  economic  rather  than  legal,  although  it  has  been  necessary 
-  some  of  the  legal  problems  and  their  economic  significance.  The  purpose  has 
been  to  consider  specific  control  provisions  and  to  analyze  their  effect  (i)  upon  the  land  actu- 
ally covered  by  the  deed  and  (2)  upon  the  relations  between  the  conveyor  and  purchaser  of 
e  land,  who  are  the  parties  to  the  contract.  The  broader  implications  of  control  through 
restrictions  in  deeds,  i.  e.,  their  effect  on  the  city  pattern  as  a  whole,  have  not  been  con- 
sidered. The  writer  has  tried  to  keep  in  mind  the  seller  and  buyer  of  subdivision  property 
and  to  analyze  and  evaluate  these  control  devices  in  the  light  of  the  relations  between  the 
parties  to  that  transaction. 

A  further  limitation,  of  course,  lies  in  the  relatively  small  number  of  deeds  analyzed. 
However,  the  sample  is  fairly  well  scattered  from  the  point  of  view  of  both  geography  and 
time  and  represents  a  wide  range  of  control.  In  securing  these  deeds  the  writer  is  indebted 
to  the  National  Association  of  Real  Estate  Boards  for  the  use  of  material  in  its  files,  to  Olm- 
sted Brothers,  landscape  architects,  for  supplying  a  copy  of  the  charted  summary  of  restric- 
tions on  properties  developed  by  them,  and  to  the  individual  subdividers  who  sent  sample 
deeds  and  other  materials  pertaining  to  their  subdivision  activities.  The  writer  wishes  spe- 
cially to  thank  Mr.  Harry  E.  Smoot  and  Mr.  Charles  S.  Ascher,  who  read  the  manuscript, 
lose  parts  dealing  with  the  legal  phases,  but  who  are  in  no  way  responsible  for 
pressed.  Finally,  appreciation  is  due  various  members  of  the  Institute  staff 
who  have  offered  valuable  suggestions  and  counsel. 

Helen  C.  Monchow 


Chicago,  Illinois 
November,  1928 


111 


CHAPTER   I 

Deed  Restrictions  in  Controlling  Land  Development 


CHICAGO'S  open  lake  front  in  the 
heart   of  the   city   is    frequently 
admired.  Yet  this  stretch  of  land 
>m  Michigan  Avenue  eastward  to  the 
is  opposite  what  is  nearly  the  most 
valuable  and  intensively  developed  land 
The    question    naturally 
arises:  How  has  this  valuable  lake  front 
)een  preserved  from  commercial  use? 

:   answer   lies   mainly   in    the   ex- 
istence   of   restrictions    drawn    for    the 
f  the  abutting  property  when 
was   subdivided   in    1836   and    1839. 
♦he  land  between  Michigan 
Avenue  and  the  lake  was  marked  on  the 
"open  ground,  no  building"  and 
"public  ground  forever  to  remain  vacant 
Since  then  these  restric- 
s  have  been  attacked  repeatedly  but 
unsuccessfully  in  the  courts.     In  three 
decisions1   the  courts   have   upheld   the 
trictions.    Briefly  stated,  the  judicial 
easoning   was   (1)    that   the  owners  of 
property    are    entitled    to    an 
junction  against  the  use  of  the  park 
for    purposes    other    than    those    desig- 
nated   in    the    original    dedication;    (2) 
:hat  the  restrictions  apply  not  only  to 
area  referred  to  in  the  plat 
of  the  original  subdivision  but  also  to 
the  land  which  has  been  added  toward 
1  (3)  that  legislation  cannot 
divest  a  legal  right  set  forth  in  the  dedi- 
cation. 

;  'ake  front  is  an  outstanding 

fthe  effectiveness  of  this  type 

ver  land  development,  the 

firm  legal  status  it  has  attained,  and  the 

eat  influence  it  may  exert  on  the 


0  v.  Ward,  169  111.  392  (1897);  B/i<s  0. 
',  198  111.  104  (1902);  Ward  v.  Field  Museum, 
111.  496  (19    ))■ 


city  pattern.  In  short,  the  example 
shows  the  broader  implications  of  restric- 
tions on  subdivision  property. 

To  treat  the  wide  variety  of  restric- 
tions which  are  now  being  imposed  on 
subdivision  developments  in  their  larger 
aspects,  i.  e.,  their  effect  on  the  com- 
munity as  a  whole,  would  lead  far  afield. 
The  scope  of  this  study  has  therefore 
been  limited  to  restrictions  placed  on 
residential  subdivision  property  and  a 
still  further  limitation  will  confine  the 
discussion  to  the  effect  of  these  restric- 
tions on  the  subdivider  and  the  original 
purchasers  of  his  lots. 

When  a  lot  is  sold  in  a  restricted  sub- 
division, something  more  than  a  mere 
transfer  of  title  takes  place.  This  trans- 
action, which  lays  down  certain  rules 
with  regard  to  the  use  of  that  land, 
defines  the  relations  between  the  sub- 
divider  and  the  purchaser,  and  fre- 
quently between  the  various  purchasers 
as  well.  For  example,  a  vendor  may 
stipulate  in  a  restrictive  clause  placed 
in  the  deeds  of  all  lots  in  the  subdivision 
that  residences  must  be  set  back  30  feet 
from  the  lot  line.  The  subdivider  is 
exercising  the  right  to  dispose  of  his 
property  as  he  sees  fit,  but  he  is  bound 
not  to  overstep  certain  limits  set  by  law. 
The  lot  purchasers  sacrifice  their  right 
to  the  free  use  of  their  separate  lots,  but 
they  gain  the  right  of  protecting  the 
benefit  they  derive  from  the  restriction 
against  its  violation  by  any  of  their 
neighbors.  The  rights  and  duties  which 
are  set  forth  in  these  restrictive  clauses 
are  all-important.  The  restrictions  de- 
fine not  only  what  an  individual  may  or 
or  may  not  do  with  his  property,  but  also 
how  far  he  may  go  in  preventing  others 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


from  doing  that  which  might  damage 
his  interests. 

To  the  economist  the  regulation  of 
human  activities  with  respect  to  land 
is  the  important  aspect  of  deed  restric- 
tions. Land  is  the  basis  of  those  rela- 
tions, and  transactions  involving  land 
furnish  the  materials  for  this  study. 

But  before  analyzing  deed  restrictions 
in  detail,  it  may  be  well  to  consider  their 
setting  in  relation  to  the  general  prob- 
lem of  controlling  urban  land  utilization 
and  the  relation  of  these  instruments  to 
other  types  of  control  with  which  they 
come  in  contact.  The  purpose  of  this 
chapter,  therefore,  is  to  trace  very 
briefly  the  evolution  of  urban  land  regu- 
lation, point  out  the  need  for  and  the 
major  purposes  of  such  control,  as  well 
as  to  explain  the  reasons  for  selecting 
the  subdivision  field  as  the  place  for 
studying  restrictive  agreements  in  oper- 
ation. In  other  words,  this  chapter  will 
indicate  the  place  of  deed  restrictions  in 
the  developing  technique  of  regulating 
urban  land  utilization. 

The  field  of  public  control  of  land  uses 
is  a  comparatively  new  activity  in  this 
country.  About  a  quarter  century  ago 
the  country  suddenly  awoke  to  the  seri- 
ous problems  which  had  arisen  from  lack 
of  planning.  Cities  were  first  to  show 
symptoms  of  the  need,  and  as  a  result 
the  development  of  systematic  control 
began  about  the  turn  of  the  century  in 
this  country. 

Certain  isolated  instances  of  control 
existed  prior  to  this  time.  Building 
codes  are  one  form  of  public  regulation 
which  is  of  fairly  long  standing.  But 
control  with  respect  to  the  planning  or 
use  of  the  land  itself  lagged  far  behind 
the  need  for  it.  There  were  exceptions, 
however,  such  as  the  planning  of  the 
Federal  City  under  the  L'Enfant  Plan 
and  the  planning  of  certain  eastern 
towns   such    as   Philadelphia   and   Wil- 


liamsburg, Virginia.  But  such  develop- 
ments were  ahead  of  time.  They  cannot 
be  said  actually  to  have  been  a  part  of 
the  general  movement  toward  control  in 
accordance  with  a  well-developed  or 
unified  plan. 

Likewise  in  the  field  of  private  control, 
although  from  early  times  frequent  use 
was  made  of  restrictions  in  deeds,  the 
device  does  not  appear  in  its  modern 
form  until  comparatively  recent  times. 
Properties  were  frequently  bound  by 
restrictions,  but  these  were  employed  al- 
most wholly  as  prohibitory  and  not  as  reg- 
ulatory measures.  Here  also,  of  course, 
exceptions  may  be  cited.  As  far  back  as 
1749  William  Penn's  son  drew  up  a  set 
of  restrictions  which  is  strikingly  mod- 
ern in  some  respects.  He  stipulated  that 
buildings  must  be  of  brick  or  stone;  that 
houses  must  conform  to  the  regulation 
lines  of  the  street;  that  building  must 
take  place  within  a  year  after  purchase  if 
the  lots  were  on  the  public  square  and 
within  two  years  on  lots  on  the  main 
street  beyond  the  square;  that  no 
patents  or  deeds  should  be  issued  to 
purchasers  until  buildings  were  up;  and 
that  the  buyers  must  pay  a  ground  rent 
of  seven  shillings  per  lot.  These  restric- 
tions drawn  nearly  180  years  ago  show 
an  attempt  at  what  we  would  term 
today  a  "community  development." 

But  not  until  about  55  years  ago  did 
a  development  appear  which  may  be 
said  to  be  the  forerunner  of  the  modern 
highly  restricted  subdivision.  At  River- 
side, Illinois,2  was  developed  a  com- 
munity which  used  the  device  of  control 
by  deed  restrictions  in  its  modern  sense. 
Land  there  was  sold  "only  to  an  abso- 
lute settler  who  will  agree  to  build  im- 
mediately or  within  one  year  from  the 
time   of  purchase,    a   home   costing   at 


2  Riverside  Improvement  Company,  Riverside,  1871, 
Description    of   Improvements,    Views    and    Buildings. 

(Chicago,  1871). 


DEED  RESTRICTIONS  IN  CONTROLLING  LAND  DEVELOPMENT 


o  be  located  thirty  feet 

e   front   of  the   lot   line, 

■ty  feet  must  be  retained  as  an 

iooryard." 

ady    stated,    these    are    only 

ces  of  control  over  land 

and  cannot  be  regarded  as 

'efinite   movement   which 

5  or  30  years  ago.     Not 

began  to  grow  by  leaps  and 

onscious  control  as  a  more 

ed  movement  begin  to  sweep 

the  country. 

fundamental  characteristics  of 
f  and  modern  city  growth 
have  made  the  development  of  a  tech- 
of  regulation  essential.   In  the  first 
:re  is  the  tremendous  rapidity 
rowth.    The  facts  of  urbaniza- 
tion are  familiar.    The  figures  portray- 
vth  are  easily  transposed 
into  terms  of  more  intensive  as  well  as 
more  extensive  use  of  the  urban  area. 
The  eye  pictures  more  and  taller  apart- 
ments and  a  constantly  increasing  acre- 
age in-  the   process   of  transition    from 
agricultural  to  urban  use.    Both  of  these 
)oint  out  the  greatly  enlarged 
opportunities  for  the  exercise  of  control 
over  urban  expansion,  particularly  over 
outlying    areas    which    are    most 
plastic. 

Secondly,   modern   engineering   prog- 
ress  has   made  decentralization  of  our 
From  the  point  of  view  of 
mtrol  two  problems  are  created  as  a 
result    of    technological    improvement. 
Improved    transportation   has   made   it 
possible  for  more  people  to  have  access 
to  a  given  area,  such  as  the  loop  in  Chi- 
igo.    Herein  lies  a  problem  in  conges- 
tion   which    requires    the    exercise    of 
public  authority.     On  the  other  hand, 
improved  transportation  has  greatly  ex- 
panded   the    urban    area.        Suburban 
growth  brings    with  it   the   problem   of 
regulating   development   adjacent    to   a 


city  in  the  interests  of  the  future  ex- 
pansion of  that  city,  as  well  as  problems 
of  administration  arising  out  of  the  pos- 
sibility of  conflict  among  neighboring 
political  jurisdictions. 

The  third  need  for  control  is  to  be 
found  in  the  rapid  rate  of  production 
of  urban  land.  It  has  long  been  sus- 
pected that  areas  were  being  subdivided 
and  sold  far  in  excess  of  demand  as 
measured  by  population  growth.  But 
only  very  recently  have  steps  been  taken 
to  measure  quantitatively  the  relation 
between  population  and  areas  ready  for 
urban  use.3  As  soon  as  adequate  facts 
of  this  nature  are  available,  they  will 
serve  as  a  basis  for  a  more  scientific 
control.  It  should  not  be  overlooked  in 
this  connection,  however,  that  produc- 
tion of  urban  land  must  of  necessity  take 
place  to  a  certain  extent  in  anticipation 
of  demand.  By  production  of  land  is 
meant  the  bringing  of  land  into  use  for  a 
specific  purpose.  Production  is  used 
here  in  the  economic  sense  to  mean  the 
creation  of  utilities.  According  to  this 
usage,  production  of  land  consists  of 
releasing  the  services  of  a  given  area  for 
a  particular  use,  or  changing  that  area 
from  one  use  to  another.  For  example, 
production  of  urban  land  consists  of 
transforming  acreage  (often  in  agricul- 
tural use)  into  building  lots,  and  urban 
land,  like  most  other  commodities,  is 
subject  to  the  economies  of  large-scale 
production.  It  would  be  uneconomical 
to  add  lots  to  the  urban  area  singly  or  in 
groups  of  two  or  three,  whenever  an 
individual  or  two  wanted  to  buy  a 
building  site.  Economic  development  of 
urban  land  requires  that  a  considerable 
tract  be  purchased,  subdivided  and  im- 
proved as  a  unit.  This  does  not  alter  the 


3  See  Orman  S.  Fink  and  Coleman  Woodbury,  "Area 
Requirements  of  Cities  in  the  Region  of  Chicago," 
4  Journal  of  Land  &  Public  Utility  Economics  273-282 
(August,  1928). 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


fact,  however,  that  a  certain  balance 
should  be  maintained  between  popula- 
tion and  expansion  of  the  urban  area, 
and  some  means  of  public  control  is 
necessary  to  assure  a  proper  relationship 
between  the  two. 

Finally,  private  initiative  alone  is  not 
adequate  to  control  expansion  of  the  ur- 
ban area.  Regulations  of  one  kind  or 
another  are  being  applied  to  an  increas- 
ing number  of  our  activities,  in  an  at- 
tempt to  safeguard  the  interests  of  the 
many  and  thus  protect  the  institution 
of  liberty. 

The  conflict  of  interests  between  in- 
dividuals or  individuals  and  groups  is 
the  reason  for  the  increased  control  over 
private  initiative,  and  this  restraint  is 
particularly  necessary  in  transactions 
involving  land.  Land  has  certain 
peculiar  characteristics  which  make  reg- 
ulation of  its  development  all  the  more 
important.  Relatively  land  has  a  greater 
fixity  of  investment  than  do  other  forms 
of  capital  goods,  a  feature  arising 
chiefly  from  the  improvements  erected 
on  the  land.  Not  only  are  the  improve- 
ments themselves  relatively  permanent, 
but  they  very  definitely  and  for  a  con- 
siderable time  determine  the  character 
of  the  utilization  of  land.  Fixed  im- 
provements, whose  services  extend  over 
a  long  period  of  years,  make  it  doubly 
necessary  to  see  that  individuals  act  in 
harmony  with  a  larger  plan  than  that 
dictated  by  their  own  immediate  inter- 
ests. Furthermore,  these  acts  concern 
not  only  those  who  commit  them,  but 
their  neighbors  as  well,  for  separate  units 
of  land  are  extremely  interdependent, 
and  susceptible  to  outside  influences. 
The  erection  of  an  inharmonious  struc- 
ture on  one  lot  affects  not  only  the 
value  of  that  particular  site  but  the 
adjacent  ones  as  well,  and  frequently 
the  entire  block.  Therefore,  control  of. 
one  sort  or  another  is  necessary  to  in- 


sure a  desirable  city  pattern,  and  this 
control  to  be  effective  should  be  ex- 
ercised over  a  relatively  large  area  and 
in  accordance  with  a  long-time  point  of 
view. 

These  evidences  of  the  need  for  con- 
trol may  be  summed  up  in  a  single 
statement.  The  process  of  urbanization 
has  so  increased  the  number  and  com- 
plexity of  the  relationships  arising  out 
of  the  use  and  title  to  urban  land  that 
measures  of  control  have  become  abso- 
lutely essential  to  the  economic  function- 
ing of  urban  life. 

The  major  part  of  this  control  is 
exercised  with  respect  to  the  physical 
development  of  the  urban  area.  This  is 
true  not  only  of  deed  restrictions  but 
of  other  forms  of  regulation  as  well.  The 
greater  proportion  of  restrictive  agree- 
ments have  to  do  with  the  type  and  use 
of  the  structures  and  the  use  of  the  lot 
area.  The  relationships  between  the 
seller  and  the  buyers  of  subdivision  land 
are  expressed  mainly  in  terms  of  what 
the  latter  may  not  do  in  the  matter  of 
building  construction,  lot  layout,  etc. 
In  other  words,  control  as  it  is  exercised 
by  a  public  or  private  agency  consists 
largely  of  regulations  in  the  nature  of 
land  planning.  This  fact  gives  a  basis 
for  outlining  the  purposes  of  control  in 
planning  terms. 

The  regulation  of  urban  land  utiliza- 
tion has  three  general  purposes.  It  aims 
first  at  the  prevention  of  waste.  In  this 
connection  control  consists  mainly  in 
planning  which  may  prevent  a  great 
many  forms  of  useless  expenditure.  It 
may  prevent  waste  of  buildings,  by  pro- 
hibiting the  erection  of  structures  in 
mapped  streets.4    These  buildings  would 


4  Prevention  of  building  in  mapped  streets  is  one  of 
the  major  problems  in  preserving  the  city  plan.  Con- 
siderable  difference  of  opinion  exists  as  to  whether  the 
more  effective  instrument  ot  control  in  this  case  is  the 
police  power  or  eminent  domain.  The  former  is  ad- 
(Continued  on  page  5 


DEED  RESTRICTIONS  IN  CONTROLLING  LAND  DEVELOPMENT 


eventually  have  to  be  destroyed  or  else 
would  necessitate  the  modification  of  the 
plan  to  a  less  economical  arrangement, 
prevent  waste  by  fore- 
i  division  of  land  into  units 
which  cannot  be  profitably  utilized. 
Finally,  planning  may  be  a  time-saver 
by  so  arranging  street  layouts  that  they 
will  facilitate  movement  from  one  part 
of  the  city  to  another.  Careful  planning 
with  such  aims  as  these  constitutes  one 
aspect  of  control. 

Secondly,    control    seeks    to   stabilize 
md,  it  may  be,  to  enhance 
land  values.    These  results  are  obtained 
through   a   form  of  restraint  which  es- 
tablishes the  character  of  a  given  area. 
If  an   area  is  set  aside  for  residential 
purposes,  its  values  are  protected  against 
a  decline  which  might  come  through  the 
manufacturing  or  com- 
mercial use  into  that  district.     Control 
s   values   frequently   ac- 
complishes tl      end  through  the  securing 
of  amenities. 

im  of  control  is  to  promote 

the  amenities  i  1  land  utilization,  as  well 

general    welfare.      This 

:oming    increasingly    im- 

ad  of  being  looked  upon 

dealistic   and   impractical,   or   as   a 

•  ital  goal  of  the  uplifters, 

3  be  recognized  as  having 

substantial  economic  value.    People  are 

willing  to  pay  for  amenities  and  there- 

they  hav     a  market  value  which, 

apart  from  the  desirability  of  improving 

standards,  justifies  the  measures 

taken  to  secure  them. 

of  these  purposes  it  is 
obvious  that  <  ontrol  can  best  be  exer- 


oolnote  U  continued  from  page  i) 

iced  in  New  York  (New  York  Laws 
c.  35).  The  latter,  known  as  the 
od,  is  proposed  in  the  Standard 
ng  Act  (Sees.  21-25,  incl.)  and  has 
California  Planning  Act  of  1927 
if  1927,  Ch.  874,  Sees.  23-25,  incl.). 


cised  and  can  be  most  effective  if  ap- 
plied when  land  is  produced.  Planning 
is  always  superior  to  replanning  and  this 
is  particularly  true  in  considering  the 
peculiar  characteristics  of  land.  It  is 
not  necessary  to  dwell  upon  the  obvious 
fact  that  land  once  utilized  for  a  given 
purpose  assumes  a  fairly  definite  char- 
acter which  is  difficult  and  expensive  to 
change.  The  economic  characteristics  of 
land,  including  fixity  of  investment, 
scarcity  of  land  of  a  particular  class, 
the  situs  element  and  the  long-time 
effect  of  any  improvements  on  the  land, 
show  how  essential  it  is  that  the  proper 
utilization  should  be  determined  as 
accurately  as  possible  when  land  of  a 
certain  kind  is  produced. 

The  chief  commercial  producers  of 
urban  land  in  general  are  the  sub- 
dividers.  They  take  acreage,  subdivide 
it  and  put  it  on  the  market  for  urban  use. 
They  lay  out  street  systems  and  fre- 
quently they  specify  and  establish 
through  the  device  of  deed  restrictions 
the  use  to  which  the  lots  shall  be  put. 
They  definitely  determine  the  general 
character  of  the  area  and  in  so  doing  they 
greatly  influence  the  pattern  of  the 
municipality.  From  one  point  of  view 
the  municipality  may  be  looked  upon  as 
an  aggregate  of  subdivisions,  and  there- 
fore the  activities  of  subdividers  and  the 
methods  they  employ  are  of  the  first 
importance  in  a  consideration  of  the 
control  over  land  utilization. 

The  conditions  under  which  the  sub- 
divider  exercises  his  control  vary  accord- 
ing to  the  location  of  his  subdivision. 
The  relationships  he  establishes  with 
the  purchasers  of  his  lots  are  influenced 
by  the  presence  or  absence  of  estab- 
lished relationships  between  him  and  the 
public  authorities.  The  production  of 
residential  subdivision  land  frequently 
takes  place  outside  the  corporate  limits 
of  a  municipality  or  outside  its  jurisdic- 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


tion,  and  unless  the  tract  is  within  the 
jurisdiction  of  a  region  organized  for 
planning  purposes,  there  is  no  public 
control  over  subdivision.  If,  therefore, 
the  subdivider  wishes  to  assure  a  cer- 
tain character  to  his  development,  he 
must  institute  his  own  system  of  regula- 
tion, and  deed  restrictions  are  his  most 
useful  instruments.  However,  his  free- 
dom from  planning  control  by  public 
authority  does  not  mean  that  he  can  be 
totally  oblivious  to  it.  This  planning 
control  often  regulates  the  utilization  of 
land,  if  not  directly  adjoining  his  tract, 
at  least  of  land  through  which  he  has 
access  to  his  subdivision.  He  is  thus 
subject  to  the  indirect,  if  not  to  the  di- 
rect, influences  of  public  control. 

If  the  subdivision  is  located  within 
the  limits  of  a  municipality  or  other 
political  unit,  the  subdivider  is  subject 
to  its  jurisdiction  and  the  rules  and 
regulations  which  it  may  impose.  For 
example,  if  he  is  operating  in  an  area 
which  is  zoned  by  public  authority,  the 
restrictions  which  he  imposes  must  be  in 
harmony  with  the  zoning  system.  But 
whether  the  subdivider  begins  his  oper- 
ations unhampered  or  unassisted  by 
public  regulation,  or  whether  he  sets  his 
own  standards,  the  significant  point  is 
that  the  subdivision  is  the  starting  point 
for  both  public  and  private  control  and 
it  affords  excellent  opportunity  for  con- 
sidering the  relation  between  the  two. 

As  already  hinted,  public  and  private 
control  are  not  mutually  exclusive.  A 
single  piece  of  property  may  be  subject 
at  the  same  time  to  both  public  and 
private  restrictions.  While  a  sub- 
divider  frequently  controls  his  develop- 
ment through  restrictive  covenants  in 
conveyances,  that  area  may  also  be 
subject  to  regulations  by  some  public 
agency.  Subsequently  deed  restrictions 
will  be  compared  more  fully  with  zoning 
ordinances  as  regulatory  devices,  and  it 


is  pertinent  here  to  point  out  only  the 
basic  difference  between  public  and 
private   control. 

This  difference  lies  in  the  relative 
intensivity  of  their  control.  Public  res- 
trictions cannot  be  used  to  discriminate 
arbitrarily  between  individuals.  They 
must  be  applicable  to  all  persons  within 
the  jurisdiction  of  the  political  unit 
which  imposes  them  or  all  persons  within 
the  group  regulated.  Therefore,  they 
must  not  set  requirements  that  are  be- 
yond the  power  of  the  economically 
weakest  members  of  the  group  to  satisfy. 
For  example,  a  subdivision  control 
ordinance  in  establishing  the  width  of 
building  lots  must  consider  the  smallest 
income  groups  and  set  a  lot-width  which 
will  not  result  in  a  price  prohibitory  to 
that  group.  In  short,  public  control  can 
set  only  marginal  standards.  A  state- 
ment to  this  effect  by  a  protagonist  of 
public  control  is  particularly  interesting: 

"In  directing  the  type  of  subdivision  a 
distinct  limitation  exists  upon  the  power  of 
official  planning,  as  residing  in  legislative 
bodies  and  exercised  upon  the  advice  of 
planning  commissions.  In  subdivision  con- 
trol official  planning  usually  can  demand  no 
more  than  the  obvious  type  of  subdivision, 
since  this  usually  represents  the  average. 
The  work  of  a  planning  commission  can 
constantly  tend  toward  establishing  the 
standards  of  a  high  type  of  subdivision,  but 
the  mediocre  subdivider  will  ever  rest  upon 
the  average  in  his  conception  of  choice  in  the 
exercise  of  property  rights."5 

Subdividers  who  wish  to  establish  de- 
velopments with  additional  require- 
ments must  resort  to  private  control  to 
insure  this  development. 

A  subdivision  enterprise,  like  any 
other  organization,  operates  in  accord- 
ance with  working  rules.  The  transac- 
tions of  those  participating  in   the  en- 

6  Hugh  R.  Pomeroy,  "Subdivision  in  Relation  to 
Community  Building,"  3  Annals  oj  Real  Estate  Practice, 
(Chicago:  National  Association  ot  Real  Estate  Boards, 
1925)  p.  268. 


DEED  RESTRICTIONS  IN  CONTROLLING  LAND  DEVELOPMENT 


7 


terprise  are  guided  not  only  by  rules 
which  have  been  developed  from  within 
the  organization  but  also  by  certain  rules 
imposed  from  without. 

These  working  rules,  which  govern 
the  activities  of  the  subdivider  but  are 
not  of  his  own  making,  may  also  con- 
veniently be  divided  into  private  and 
public  regulations.  Chief  among  the 
instruments  of  private  control  are  the 
restrictions  contained  in  the  deeds  to  the 
property  prior  to  the  acquisition  of  title 
by  the  subdivider.  In  other  words,  the 
land  to  be  subdivided  may  be  covered 
by  restrictions  inserted  in  previous  con- 
veyances. Such  limitations  are  most 
likely  to  be  found  on  land  in  or  very 
near  the  city.  They  would  seldom  be  a 
factor  in  the  development  of  the  more 
remote  suburban  subdivisions.  When- 
ever such  limitations  do  exist,  they 
constitute  a  part  of  the  working  rules 
governing  the  activity  of  the  subdivider. 

The  working  rules  imposed  by  public 
agencies  are  more  frequently  en- 
countered by  the  subdivider.  The  four 
major  types  of  regulation,  which  may 
serve  as  working  rules  for  the  sub- 
divider,  are  building  codes,  zoning  ordi- 
nances, subdivision  control  ordinances 
and  regulations  pertaining  to  "metes 
and  bounds"  subdividing.  For  purposes 
of  this  discussion  the  chief  significance 
of  the  first  three  of  these  forms  of  con- 
trol is  in  the  minimum  standards  which 
they  set  for  the  subdivider.     Building 


codes  set  minimums  for  the  construc- 
tion of  improvements;  zoning  ordinances 
set  minimums  by  prescribing  the  lowest 
uses  permissible  in  certain  districts; 
and  subdivision  control  ordinances  set 
minimums  for  lot  requirements  and 
utility  installation.  Regulations  with 
reference  to  "metes  and  bounds"  sub- 
dividing usually  require  the  subdivider 
to  sell  his  lots  from  a  recorded  map 
rather  than  by  description.  These  forms 
of  public  regulation  mark  the  starting 
point  for  control  over  land  develop- 
ment. 

In  addition  to  these  working  rules 
imposed  on  the  subdivider  by  public 
authority,  he  may  set  up  other  require- 
ments which  will  be  binding  on  both 
himself  and  the  purchasers  of  his  lots. 
Regulations  of  this  kind  are  usually  put 
in  the  form  of  restrictive  clauses  in- 
serted in  the  deeds  conveying  the  prop- 
erty. They  set  forth  the  rights  and 
duties  of  both  the  subdivider  and  the 
purchasers  with  respect  to  the  land  con- 
veyed. They  regulate  the  relationships 
between  the  parties  to  the  transfer,  and 
these  are  the  relationships  with  which 
this  study  is  primarily  concerned.  The 
increasing  use  of  deed  restrictions  as  a 
means  of  controlling  land  utilization — 
particularly  residential  subdivision  land 
— warrants  some  study  of  the  forms  this 
type  of  control  may  take,  the  objects 
it  has  in  view  and  the  effectiveness  of 
the  device  as  a  measure  of  control. 


CHAPTER  II 

The  Developer's  Plan  as  a  Basis  for  Deed  Restrictions 


£{  ir T  is  the  Realtor  subdivider  who  is 
really  planning  our  cities  today, 
who  is  the  actual  city  planner  in 
practice."1  This  statement  is  par- 
ticularly interesting  because  it  comes 
from  Mr.  George  B.  Ford,  a  city  planner 
of  wide  reputation  and  a  former  president 
of  the  National  Conference  on  City 
Planning.  Subdividers  take  the  raw 
land,  carve  out  a  street  system,  parcel 
the  area  into  lots  and  through  their 
development  activities  stamp  them  with 
a  definite  character.  In  the  past,  this 
has  taken  place  with  a  minimum  of  in- 
terference or  guidance  from  the  neigh- 
boring city  and  often  without  any  guid- 
ance at  all.  Now,  although  cities  and 
regions  are  awakening  to  the  desira- 
bility of  controlling  their  outlying  un- 
developed areas,  it  may  still  be  said  that 
the  subdividers  are  in  large  measure 
determining  the  pattern  of  our  cities  and 
they  are  likely  to  continue  to  do  so  for 
some  time  to  come.  Hence,  the  devel- 
oper's plan  for  his  subdivision  is  of  far- 
reaching  significance  in  the  develop- 
ment of  the  urban  area  and  in  the  use  of 
deed  restrictions. 

The  developer's  plan,  as  the  term  is 
used  here,  is  the  scheme  for  the  physical 
layout  of  the  area,  including  the  im- 
provements necessary  to  make  the  lots 
ready  for  building  purposes  and  indica- 
tions of  the  placement  and  general  na- 
ture of  the  structures  to  be  erected 
thereon.  In  other  words,  developer's 
planning  consists  of  working  out  and 
providing  for  the  necessary  details  of 
construction  and  regulation  which  will 


1  "City  Planning  and  Unbuilt  Outlying  Areas,"  3  An- 
nals 0/  Real  Estate  Practice  (Chicago:  National  Asso- 
ciation of  Real  Estate  Boards,  1925),  p.  247. 


make  possible  the  fulfillment  of  his  con- 
ception of  that  subdivision  as  a  balanced 
development.  Or,  as  one  writer  has  put 
it,  "Planning  should  be  so  thorough  as 
to  offer  an  accurate  outline  and  picture 
of  the  project  to  be  completed." 

From  this  description  of  the  de- 
veloper's plan  it  is  plain  that  this  dis- 
cussion is  not  concerned  with  bare  sub- 
division which  consists  of  the  mere 
platting  and  staking  out  of  lots.  A  dis- 
tinction is  drawn  between  a  "sub- 
division" and  a  "subdivision  develop- 
ment." The  latter  includes,  beside  the 
parcelling  of  the  area  into  building  sites, 
the  preparation  of  those  lots  for  use. 
"Sale  for  use"  and  not  for  speculative 
purposes  is  the  aim  of  subdivision  de- 
velopment. Subdivision  development 
illustrates  the  broadening  scope  of  the 
subdivider's  activity.  In  a  carefully 
planned  subdivision  the  developer  must 
exercise  the  functions  himself  or  secure 
the  services  of  a  city  planner,  a  land- 
scape architect,  an  engineer  and  a 
building  architect. 

For  purposes  of  describing  the  details 
of  developer's  planning  it  will  be  most 
convenient  to  suppose  that  the  plan  is 
being  imposed  upon  an  area  which  is  not 
within  the  jurisdiction  of  a  municipality 
or  region  which  is  exercising  planning 
control.  This  assumption  will  facilitate 
the  discussion  for  it  permits  the  inclusion 
of  all  the  main  functions  which  a  sub- 
divider  may  be  called  on  to  perform. 
It  also  obviates  the  necessity  for  re- 
peated qualifications  in  the  form  of 
public  regulation  of  subdivision  ac- 
tivities. 

Therefore,  the  following  description 
of  the  developer's  plan  will  be  based  on 


DEVELOPER'S  PLAN  AS  BASIS  OF  RESTRICTIONS 


the  assumption  that  the  subdivider  is 
responsible  for  the  development  of  the 
area.  It  is  not  a  description  of  an  actual 
plan  or  a  proposal  for  a  model  plan. 
It  is  merely  an  outline  of  the  most  im- 
portant items  to  be  considered  in  plan- 
ning a  subdivision  development. 

The  subdivider's  control  consists  of 
his  plan  for  the  area  and  the  restrictions 
which  he  places  in  his  conveyances  to 
insure  the  fulfillment  of  that  plan. 
The  plan  is  the  initial  step. 

The  first  step  toward  careful  plan- 
ning is  a  thorough  and  painstaking  sur- 
vey of  the  area  to  be  developed,  includ- 
ing contours,  relief  maps,  air  maps,  etc. 
From  these  sources  the  developer  can 
gather  detailed  information  about  his 
subdivision  —  the  irregularities  in  its 
topography,  the  location  of  trees,  monu- 
ments, etc.  The  facts  gleaned  from  such 
surveys  are  necessary  as  a  basis  on  which 
to  rest  his  plan  of  development.  They 
provide  the  data,  for  example,  for 
determining  the  drainage  system,  the 
grading  of  streets,  the  proper  location  of 
utility  lines  and  sewers.  A  street  plan 
which  is  superimposed  on  a  hilly  area 
without  reference  to  contours  is  a  costly 
improvement.  The  same  is  true  of  a 
plan  which  in  the  process  of  platting 
and  staking  destroys  the  natural  growth 
on  the  land  and  then  calls  for  the  ex- 
penditure of  considerable  sums  for  trees 
and  shrubbery  to  beautify  parkways. 
With  full  information  on  such  points  the 
developer  is  enabled  to  plan  his  sub- 
division more  economically  and  more 
attractively.  He  can  lay  out  his  streets 
and  utility  lines  in  harmony  with  the 
contour  of  the  land,  thus  saving  expense 
and  at  the  same  time  increasing  the 
attractiveness  of  his  development.  He 
can  plan  his  lot  layout  in  such  a  way 
as  to  take  maximum  advantage  of  the 
distinctive  physical  features  of  his  tract. 
In  short,  let  the  contour  dictate  the  plan 


as  far  as  possible,  instead  of  trying  to 
run  the  plan  counter  to  it  and  thus 
creating  streets  and  lots  that  are  not 
usable  because  the  grades  are  too  steep 
and  the  expense  of  improvement  is  too 
great.  Complete  surveys  are  therefore  a 
valuable  prerequisite  to  the  developer's 
plan. 

The  survey  idea  should  be  applied 
not  only  to  the  physical  area  of  the  sub- 
division itself.  The  effect  of  contour  of 
the  land,  as  well  as  size  of  the  tract,  on 
the  developer's  plan  is  obvious.  Not  so 
obvious  but  quite  as  important  from  the 
point  of  view  of  layout  is  the  relation  of 
the  subdivision  to  the  surrounding  area, 
which  should  also  be  determined  by  care- 
ful survey.  Four  factors  in  this  rela- 
tionship may  be  mentioned:  (i)  distance 
from  the  neighboring  city;  (2)  transport 
facilities;  (3)  character  of  the  neighbor- 
ing city;  and  (4)  character  of  the  pro- 
posed development.  The  following  para- 
graphs will  point  out  some  of  the  ways 
in  which  these  factors  influence  the  c'e- 
veloper's  plan  for  his  subdivision. 

The  effect  of  the  distance  of  the  de- 
velopment from  the  city  of  influence  is 
clear.  Developments  at  a  distance  from 
the  city  take  on  a  distinctly  suburban 
character  and  a  new  kind  of  develop- 
ment called  "estate  type"  is  growing  in 
popularity  with  certain  income  groups. 
On  the  other  hand,  subdivisions  nearer 
the  city  are  for  obvious  reasons  cut  up 
into  smaller  lots  and  developed  for  dif- 
ferent uses.  But  distance  from  the  city 
is  measured  not  only  in  miles  but  in 
time  and  price.  This  latter  method  of 
measurement  ties  the  distance  factor  to 
the  transport  factor.  Measurement  of 
distance  in  time  and  price  has  a  very 
direct  bearing  on  the  development  of 
outlying  areas. 

One  result  of  the  improvement  of 
transport  facilities  has  been  to  bring  the 
outlying  regions  within  the  reach  of  the 


IO 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


smaller  income  groups  whose  demand  for 
home  sites  must  be  satisfied  by  smaller 
lots.  Lot  sizes  are  not  the  only  item  in 
the  developer's  plan  to  be  affected  by 
this  changing  demand.  The  distribu- 
tion of  uses  and  the  community  features 
will  be  markedly  different  as  a  result. 

The  effect  of  the  character  of  the 
neighboring  city  is  perhaps  not  so  obvi- 
ous but  quite  as  important.  A  plan  for  a 
tract  located  just  outside  the  town  of 
Harvey,  Illinois,  would  naturally  be 
quite  different  from  the  plan  for  a  de- 
velopment outside  of  Evanston,  Illinois. 
Suppose  both  developments  were  being 
planned  for  what  is  coming  to  be  known 
as  the  "junior  executive"  group.  But 
even  though  the  same  purchasing  group 
was  appealed  to,  the  plan  for  the  de- 
velopments would  differ  markedly.  The 
subdivision  outside  of  Evanston  could 
rely  upon  the  extensive  use  of  Evans- 
ton's  well-developed  shopping  center, 
whereas  in  the  other  area  provision 
would  have  to  be  made  for  more  ade- 
quate shopping  facilities  of  the  kind  to 
appeal  to  the  tastes  of  the  prospective 
purchasers. 

The  influence  of  the  character  of  the 
proposed  development  upon  the  sub- 
divider's  planning  is  also  plain.  To 
illustrate:  community  features  are  vastly 
more  important  in  a  subdivision  for  a 
low  income  group;  the  plans  for  the  im- 
provements will  of  course  differ  greatly 
with  the  presence  or  absence  of  apart- 
ment or  business  uses;  developments  for 
the  higher  income  groups  afford  oppor- 
tunities for  a  greater  variety  of  lot  pat- 
terns and  block  layouts.  These  ex- 
amples merely  suggest  the  close  rela- 
tionship existing  between  the  character 
of  the  proposed  development  and  the 
developer's  plan  for  the  physical  layout 
of  the  area. 

These  four  factors,  along  with  the 
contour  and  size  of  the  tract,  are  fixed 


by  the  selection  of  the  area  to  be  sub- 
divided. Together  they  determine  the 
developer's  plan.  The  various  items  in 
that  plan  will  vary  in  number  and  im- 
portance according  to  these  general 
characteristics  of  the  subdivision  and  its 
surroundings.  Description  of  these  fac- 
tors also  emphasizes  the  fact  that  no 
rules-of-thumb  can  be  applied  to  sub- 
division planning.  Each  subdivision  is  a 
problem  in  itself,  to  be  worked  out  under 
the  influence  of  the  conditions  in  the 
region  within  which  it  lies. 

The  variable  items  in  the  developer's 
plan  may  now  be  considered  separately. 
The  first  concern  of  the  developer  is  to 
give  careful  consideration  to  the  area 
surrounding  his  subdivision.  His  plan 
will  be  affected  in  three  major  respects 
by  his  surroundings:  (i)  His  subdivision 
forms  part  of  a  regional  development. 
He  is  therefore  concerned  with  the 
status  of  the  surrounding  land,  its 
present  development  or  lack  of  it  and  its 
probable  future.  A  knowledge  of  the 
region  will  enable  him  to  fit  his  plan 
into  the  whole  scheme  or,  if  need  be, 
protect  his  plan  as  far  as  possible 
against  deteriorating  influences.  (2) 
Of  particular  importance  are  the  uses  of 
the  land  immediately  adjoining  his  tract. 
Even  the  existence  of  a  zoning  system 
is  not  absolute  assurance  that  the  sub- 
division will  not  be  endangered  from 
without.  An  adjoining  development  may 
be  meeting  the  requirements  of  the 
zoning  provisions  and  still  have  stand- 
ards so  low  as  to  endanger  a  proposed 
high-class  development  adjacent  to  it. 
Then  there  is  the  possibility  that  the 
tract  in  question  might  be  on  the  verge 
of  a  different  utilization.  This  raises 
the  border  problem  which  is  one  of  the 
difficulties  of  zoning.  So  whether  he 
is  near  a  zoned  area  or  not,  the  sub- 
divider  will  do  well  to  look  to  the  pro- 
tection of  the  borders  of  his  develop- 


DEVELOPER'S  PLAN  AS  BASIS  OF  RESTRICTIONS 


ii 


merit.  A  solution  that  has  been  tried 
both  by  subdividers  and  by  munici- 
palities is  the  planning  of  parkways  as 
buffers  between  different  use  zones  or 
between  adjoining  developments.  One 
subdivider  has  so  placed  his  golf  course 
as  to  surround  his  development  almost 
completely.  (3)  The  third  problem  in 
the  relationship  of  the  subdivision  to 
the  surrounding  area  is  that  of  street 
connections  and  traffic  movement.  This 
is  important  not  merely  from  the  point 
of  view  of  access  to  the  subdivision  it- 
self but  also  from  the  point  of  view  of 
the  movement  of  traffic  in  the  entire 
area.  In  the  first  place,  the  streets  of 
the  new  subdivision  are  required  to  con- 
nect with  existing  streets  without  jogs. 
This  is  the  point  on  which  public  con- 
trol, wherever  it  is  exercised,  is  most 
insistent.  Then  where  the  natural  path 
of  major  thoroughfares  or  arterial  high- 
ways lies  through  the  proposed  new 
development,  adequate  provision  should 
be  made  for  their  extension.  In  this 
way  the  subdivision  is  coordinated  with 
the  radial  growth  of  the  city  and  the 
plan  for  traffic  movement  in  the  region 
of  which  it  is  a  part. 

Street  plans-  within  the  subdivision 
fall  into  two  groups:  major  streets  and 
minor  streets.  The  former  are  the  heavy 
traffic  streets  which  connect  the  subdivi- 
sion with  the  surrounding  area.  These 
streets  should  be  relatively  straight, 
providing  the  most  direct  routes  to  the 
main  termini.  Adequate  width  and 
special  construction  to  bear  this  kind  of 
traffic  are  the  other  points  of  importance. 
The  minor  streets  are  the  flexible  ele- 
ments in  the  street  plan.  They  are 
mainly  within  the  subdivision  and  are 
designed  primarily  for  the  service  of 
the  lot  owners.  Width  and  type  of  con- 
struction are  important  considerations, 
largely  from  the  point  of  view  of  econ- 
omy.    Minor  streets  may  be  relatively 


narrow  because  one  of  the  aims  is  to  dis- 
courage traffic  through  them  in  the 
interest  of  more  peace  and  quiet  for  the 
lot  owners  and  greater  safety  for  chil- 
dren. Naturally  their  construction  need 
not  be  so  heavy  nor  so  expensive  as  that 
of  the  major  streets.  The  increasing  use 
of  curves  and  the  occasional  introduc- 
tion of  cul-de-sacs  are  adding  greatly  to 
the  attractiveness  of  the  better-planned 
subdivision.  Under  this  heading  also 
belongs  provision  for  alleys,  lanes,  foot- 
ways, bridle  paths,  etc.,  as  well  as  the 
sidewalks  and  parkways  bordering  the 
streets.  The  adaptation  of  the  street 
plan  to  contours  has  already  been 
touched  upon  and  need  only  be  men- 
tioned here  for  the  sake  of  emphasis. 

After  laying  out  the  street  plan  the 
developer  turns  next  to  the  apportion- 
ment of  uses  in  his  subdivision.  In  such 
apportionment  he  exercises  a  zoning 
power.  If  he  is  developing  a  purely 
residential  subdivision,  the  question 
arises  whether  to  permit  apartments  or 
multi-family  units  of  any  kind.  If  the 
subdivision  is  large,  then  provision  for  a 
shopping  center  is  essential.  The  sub- 
divider  must  decide  not  only  which  of 
these  uses  he  will  permit,  but  where  they 
shall  be  located  and  how  much  land  he 
will  allocate  to  each  type  of  use.  The 
location  of  the  business  area,  if  any,  is 
usually  more  or  less  predetermined.  Its 
natural  place  is  at  the  juncture  of  the 
main  traffic  streets  in  or  bounding  the 
subdivision.  Its  amount,  however, 
should  be  determined  with  careful 
reference  to  the  population  it  will 
serve. 

Research  methods  are  being  applied 
to  this  problem  and  are  revealing  the 
relationship  which  exists  in  certain  fully 
developed  areas  between  business  front- 
age and  numbers  of  residents.  Such 
measurements  available  to  the  sub- 
divider  form  a  basis  for  intelligent  plan- 


12 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


ning  of  business  frontage.2  Other  con- 
siderations in  connection  with  the  plat- 
ting of  business  frontage  are  the  size 
and  shape  of  the  lots  and  plans  for  con- 
trol of  the  type  of  buildings  to  be 
erected  thereon.  Subdividers  have 
awakened  to  the  knowledge  that  shop- 
ping centers  need  not  be  blots  upon  the 
subdivision  landscape.  If  care  is  taken 
and  control  exercised,  the  store  buildings 
may  be  constructed  to  harmonize  with 
the  whole  development  and  not  impair 
even  the  most  exclusive  subdivision. 

The  next  step  in  the  developer's  zon- 
ing will  probably  be  the  location  of  the 
multi-family  units.  These  too  will  follow 
the  major  streets  and  boundaries  of  the 
subdivision,  serving  as  buffers  for  the 
single-family  residential  uses  which  it  is 
assumed  will  be  the  main  interest  of  the 
subdivider.  The  most  frequent  practice 
in  a  large  subdivision  is  to  place  the  large 
apartments  near  the  borders  of  the  tract, 
with  the  two-  and  three-family  dwellings 
next  inside  and  the  single-family  res- 
idences in  the  interior  of  the  develop- 
ment. It  might  be  noted  here  that  a 
new  departure  in  subdividing  is  the 
development  exclusively  devoted  to 
apartment  buildings.  Subdivisions  of 
this  variety  create  new  problems  in 
lot  layout,  street  planning,  and  improve- 
ment installation. 

The  single-family  residence  lots  will 
be  located  in  the  most  desirable  sections 
of  the  subdivision.  In  planning  their 
location  the  developer  will  seek  to  ex- 
ploit to  the  utmost  any  distinctive  physi- 
cal features  his  tract  may  contain.  By  so 
doing  he  creates  amenity  values,  which 
will  repay  him  for  his  care  in  planning. 

The  subdivider  may  further  use  his 
zoning  powers  to  establish  architectural 


districts.  Examples  of  this  type  of 
planning  are  found  mainly  on  the  Pacific 
Coast,  where  subdividers  are  pioneering 
in  architectural  control.  The  developers 
of  Palos  Verdes  Estates  in  Los  Angeles 
County  have  worked  out  a  most  elabor- 
ate system  for  regulating  architecture.3 
Their  method  is  to  establish  districts  for 
architecture  of  specified  types,  which  are 
defined  in  terms  of  the  color  of  the 
structures,  their  material  and  the  type 
of  roof.  Four  such  districts  are  estab- 
lished and  zoning  is  also  involved  in  that 
business  lots  are  all  located  in  "Type  IV 
Architecture  District."  The  potential- 
ities of  this  type  of  control  have  yet  to 
be  tested.  Architectural  control  would 
seem  to  be  more  important  in  sub- 
divisions where  the  lots  are  comparatively 
small,  for  there  the  structures  are  closer 
together  and  the  chance  for  clash  be- 
tween too  inharmonious  types  is  greater. 
After  determining  lot  uses  the  devel- 
oper plans  his  lot  layout  which,  of  course, 
must  be  coordinated  with  the  proposed 
utilization  of  the  land.  Lot  sizes  should 
be  determined  with  careful  attention  to 
area  as  well  as  to  width  and  depth.  On 
single-family  residence  lots  the  aim  is  to 
secure  as  much  individuality  as  possible 
without  impractical  layouts.  Adequate 
platting  also  includes  the  placing  of 
building  lines  and  easements  for  the  in- 
stallation of  the  utilities  and  the  location 
of  structures.  The  platting  of  building 
lines  is  quite  as  important  as  provisions 
for  adequate  lot  size,  for  the  latter  may 
go  for  naught  if  the  place  of  the  structure 
on  the  lot  is  not  regulated  with  reference 
to  the  plat  as  a  whole.  The  complexity 
of  the  problem  of  establishing  building 
lines  is  reflected  in  the  detailed  character 
of  the  deed  restrictions  covering  this 
point. 


2  See  Coleman  Woodbury,  "The  Size  of  Retail  Busi- 
ness Districts  in  the  Chicago  Metropolitan  Region," 
4  Journal  of  Land  &  Public  Utility  Economics,  85-91 
(February,  1928). 


3  See  Protective  Restrictions,  Palos  Verdes  Estates, 
Los  Angeles  County,  California.  Tract  7333  and  Tract 
8652,  Montemalaga. 


DEVELOPER'S  PLAN  AS  BASIS  OF  RESTRICTIONS 


13 


The  planning  of  the  improvements 
constitutes  one  of  the  most  important 
items  in  the  developer's  scheme.  Im- 
provements may  be  divided  roughly  into 
three  groups.  The  first  improvements 
include  clearing  the  tract,  draining  it 
and  installing  culverts  and  bridges, 
grading  the  streets  and  curbing  them, 
and  placing  street  signs.  The  second 
group  may  be  described  as  the  under- 
ground improvements  which  should  be 
installed  before  paving.  This  group  in- 
cludes sewer,  water  and  gas  lines  and  in 
the  better  subdivisions  electric  and  tele- 
phone lines  as  well.  In  addition  to  pro- 
viding for  the  location  of  these  lines 
under  the  streets  this  group  also  re- 
quires plans  for  their  connection  with 
the  separate  lots.  To  take  care  of  this 
point  the  developer's  plan  should  in- 
clude the  mapping  of  an  easement  on  the 
rear  of  each  lot  to  permit  the  entrance 
of  these  utilities  to  the  individual  lots. 
The  third  group  of  improvements  in- 
cludes the  paving  of  the  streets,  the 
laying  of  sidewalks  and  the  planting  of 
trees.  The  developer's  plan  for  these 
improvements  should  give  attention  not 
only  to  their  location  but  also  to  the 
quality  of  the  improvements. 

Finally,  an  adequate  developer's  plan 
will  provide  the  necessary  community 
features.  School  sites  are  among  the 
most  important.  Location  is  one  major 
consideration  and  ample  space  is  the 
other.  The  remaining  community  fea- 
tures may  be  grouped  under  the  head 
of  recreational  areas.  By  recreational 
areas  are  meant  only  the  smaller  open 
spaces,  not  large  tracts  such  as  the  public 
parks  in  our  large  cities.  These  recrea- 
tional areas  may  be  public  or  private, 
as  the  subdivider  may  decide.  They  may 
be  dedicated  to  the  city  which  will  then 
maintain  them  or  they  may  be  desig- 
nated for  the  use  of  the  lot  purchasers 
who  will  be  charged  for  their  upkeep. 


This  point  has  little  bearing  on  the 
planning  aspect.  The  main  thing  is  to 
see  that  adequate  recreational  areas  are 
provided.  Considerable  difference  of 
opinion  exists  as  to  what  is  "adequate" 
but  10%  of  the  gross  area  of  the  sub- 
division is  probably  not  too  high  a  figure. 
Of  course,  for  a  very  small  development 
this  might  be  excessive  but  the  sug- 
gestion has  been  made  that  small, 
adjacent  subdivisions  might  solve  the 
difficulty  by  joining  in  providing  the 
necessary  recreational  areas.  The  pro- 
vision of  these  facilities  is  particularly 
desirable  in  the  subdivisions  for  the 
lower  income  groups,  but  cost  has  been 
supposed  to  make  this  impossible.  The 
recent  researches  of  Mr.  Robert  Whit- 
ten,  however,  seem  to  indicate  that  care- 
ful planning  can  make  these  advantages 
available  for  the  less  expensive  subdivi- 
sions.4 

In  addition  to  the  playgrounds  in  con- 
nection with  the  schools  there  is  need  for 
play  spaces  for  the  smaller  children. 
These  areas  need  not  be  large  but  should 
be  comparatively  numerous  and  so 
placed  that  the  children  will  not  have  to 
go  long  distances  or  cross  main  traffic 
streets  to  reach  them.  In  some  sub- 
divisions this  need  has  been  filled  by  a 
lot  layout  which  is  described  as  the 
"interior  parkway."  This  type  of  lay- 
out is  by  block  rather  than  by  lot,  for 
the  houses  face  the  interior  of  the  block 
with  their  garages  on  the  street  frontage. 
In  one  such  development  the  whole 
block  is  353  feet  deep  and  each  lot  owner 
has  125  feet  of  lot  depth  for  his  own  use, 
the  balance  being  developed  as  a  park 
for  all  the  owners  in  the  block.  This  lay- 
out not  only  supplies  one  solution  of  the 
problem  of  play  spaces  for  small  children 
but  also  increases  privacy. 

4  See  "A  Research  into  the  Economics  of  Land  Sub- 
division," School  of  Citizenship  and  Public  Affairs  of 
Syracuse  University  and  the  Regional  Plan  of  New 
York  and  Its  Environs,  1927. 


H 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Parks  may  serve  other  purposes  than 
providing  play  space  for  children.  An 
occasional  open  space  adds  to  the  beauty 
of  the  subdivision  and  affords  an  oppor- 
tunity for  using  odd-shaped  pieces  of 
land  that  frequently  occur  in  cutting  up 
a  tract. 

Golf  courses  are  increasingly  common 
adjuncts,  particularly  of  subdivisions 
remote  from  the  city.  From  the  control 
point  of  view,  their  usefulness  as  buffers 
between  the  subdivision  and  inharmoni- 
ous uses  has  already  been  mentioned. 
They  also  preserve  a  large  open  space 
on  one  or  more  sides  of  the  development 
and  this  is  always  an  asset  to  a  residential 
district. 

The  developer's  plan  as  outlined  here 
has  been  confined  largely  to  a  descrip- 
tion of  the  physical  layout  of  the  area. 
The  purposes  of  such  planning  are  to 
secure  economies  in  development  and 
to  secure  the  maximum  amenities  that 
can  be  derived  from  the  area.  Trans- 
lated into  terms  of  value,  the  subdivider 
seeks  through  planning  to  create  and  pro- 
tect land  values.  A  third  purpose  of  plan- 
ning is  to  visualize  the  completed  project 
in  order  to  be  assured  that  the  best  use 
of  the  property  is  being  planned  before 
improvement  actually  begins.  Some  sub- 
dividers  even  go  so  far  as  to  make  mini- 
ature models  of  the  tract,  together  with 
papier  mache  reproductions  of  some  of 
the  proposed  improvements.  Still  an- 
other method  of  insuring  suitable  devel- 
opment is  to  stake  out  the  plan  roughly 
on  the  ground.  This  permits  readjust- 
ment where  change  seems  desirable. 

According  to  the  definition  set  forth 
at  the  beginning  of  this  chapter,  the 
"developer's  plan"  includes  more  than 
the  outline  of  the  physical  layout  of  the 
area.  An  adequate  plan  includes  a 
scheme  for  the  improvements  to  be  con- 
structed on  the  area,  as  well  as  detailed 
platting.     Careful  planning  will  go  for 


naught,  if  building  takes  place  in  a  hap- 
hazard fashion  and  without  reference  to 
a  definite  scheme,  for  the  structures  to 
be  built  on  the  subdivision  will  deter- 
mine in  large  measure  the  character  of 
the  development. 

Therefore,  the  subdivider  seeks  to 
make  certain  that  development  shall  be 
in  harmony  with  his  platting  scheme  and 
shall  take  place  in  accordance  with  his 
plans  for  the  area.  To  this  end  he  draws 
restrictions  to  be  inserted  in  the  deeds 
conveying  the  separate  parcels.  In  this 
way  he  can  insure  through  a  legal  instru- 
ment that  the  open  spaces  he  has 
planned  will  be  maintained,  that  build- 
ings will  not  encroach  upon  his  carefully 
planned  street  vistas,  that  inharmonious 
structures  will  not  mar  the  appearance 
of  the  subdivision — in  short,  that  the 
development  will  have  the  character 
which  he  planned  for  it.  Thus,  deed 
restrictions  may  be  looked  upon  as  a 
means  of  crystallizing  the  developer's 
plan  for  his  subdivision. 

Two  general  methods  of  imposing 
restrictions  on  building  lots  may  be 
mentioned  here.  Restrictions  may  be 
drawn  for  each  lot  as  it  is  sold  or  re- 
strictions may  be  drawn  for  all  the  lots 
as  a  part  of  the  scheme  for  the  develop- 
ment of  the  entire  area.  The  former 
method  may  be  described  roughly  as 
aimed  to  promote  the  interests  of  the 
subdivider  through  more  rapid  turnover. 
Piecemeal  restricting  is  incidental  to  the 
merchandising  aspect  of  the  subdivision 
function  and  not  to  the  control  phase. 
The  latter  method,  while  also  in  har- 
mony with  the  interests  of  the  sub- 
divider,  has  the  benefit  of  the  whole  area 
as  its  aim.  Restrictions  of  this  class  are 
frequently  filed  with  the  plat  of  sub- 
division, in  which  case,  however,  the  list 
on  the  plat  is  not  a  complete  record  of 
the  restrictions  actually  inserted  in  the 
deeds  conveying  the  property.   The  plat 


DEVELOPER'S  PLAN  AS  BASIS  OF  RESTRICTIONS 


15 


usually  records  only  those  restrictions 
that  have  to  do  with  the  physical  devel- 
opment of  the  area  and  does  not  include 
such  items  as  restraints  on  occupancy, 
etc.  However,  restrictions  designated 
on  a  plat  are  recognized  by  the  courts, 
even  though  they  may  not  be  referred 
to  in  the  deed.  In  an  Illinois  case5  the 
court  held  that  purchasers  of  subdivi- 
sion lots,  the  plat  of  which  contained  a 
building  line,  took  title  subject  to  that 
building  line,  whether  their  deeds  re- 
ferred to  the  building  line  or  not.  On  the 
other  hand,  when  restrictive  clauses  in 
deeds  modify  the  restrictions  as  recorded 
on  the  plat,  then  the  provisions  in  the 
deed  prevail.6 

For  obvious  reasons  the  piecemeal 
method  of  imposing  restrictions  is  not 
desirable.  In  the  first  place,  it  is  not 
conducive  to  harmonious  development. 
In  order  to  sell  a  certain  lot  the  sub- 
divider  will  be  tempted  to  make  a  con- 
cession to  satisfy  some  whim  of  his  cus- 
tomer. For  example,  the  privilege  to 
violate  the  front  building  line  may  com- 
pletely destroy  the  appearance  of  a 
given  block.  Or  permission  to  erect  an 
apartment  house  on  a  corner  lot  will  ruin 
the  effectiveness  of  restrictions  drawn 
to  preserve  the  amenities  of  single- 
family  residential  sites.  These  examples 
will  suffice  to  show  the  unsatisfactory 
nature  of  piecemeal  restrictions.  As  a 
method  of  control  their  usefulness  is 
questionable. 

However,  one  argument  that  may  be 
advanced  in  favor  of  piecemeal  restric- 
tions should  be  considered.  It  may  be 
argued  that  this  method  affords  an  op- 
portunity for  elasticity ;  or,  in  other  words, 


that  somewhat  different  restrictions  may 
be  imposed  on  different  lots,  and  this 
may  be  desirable  from  the  point  of  view 
of  attractive  development.  But  the 
method  of  drawing  restrictions  for  the 
entire  plat  does  not  necessarily  mean 
uniform  restrictions.  In  fact,  in  many  of 
the  high-class  developments  provision  is 
made  for  the  different  treatment  of  dif- 
ferent lots,  or  groups  of  lots.  By  this 
method  it  is  possible  to  have  elasticity 
in  restrictive  agreements  and  at  the 
same  time  have  adequate  control. 

The  second  method  of  imposing  re- 
strictions coordinates  them  with  the 
plan  for  the  subdivision.  The  coordina- 
tion process  is  mutually  beneficial  to  the 
plan  and  to  the  restrictive  agreement. 
A  plan  gains  through  restrictions  that 
are  drawn  to  assure  its  execution  and 
restrictions  gain  prestige  in  the  courts 
when  they  are  based  on  a  plan.  This 
study  is  confined  to  an  analysis  of  deed 
restrictions  of  this  class,  because  they 
represent  a  definite  attempt  at  the  con- 
trol of  land  development. 

The  usefulness  and  desirability  of 
deed  restrictions  in  insuring  the  de- 
veloper's plan  are  generally  granted. 
They  constitute  the  means  of  enforcing 
a  plan  of  development.  But  because  of 
the  binding  nature  of  restrictive  agree- 
ments and  the  considerable  periods  of 
time  for  which  they  are  established,  the 
courts  exercise  great  caution  in  interpret- 
ing contracts  of  this  nature  and  circum- 
scribe them  carefully  lest  they  infringe 
too  much  upon  the  rights  of  the  indi- 
vidual in  his  land,  or  impose  stipula- 
tions not  in  harmony  with  the  general 
interest. 


6  "Where  a  deed  refers  to  a  plat  or  subdivision,  the      were  recited  in  it."    Simpson  v.  Mikkelsen,  196  111.  575 
particular  descriptions  shown  upon  such  plat  or  sub-      at  579  (1902). 
division  are  as  much  a  part  of  the  deed  as  though  they  6  Eckhart  v.  Irons,  128  111.  568  (1889). 


CHAPTER  III 

The  Legal  Aspects  of  Deed  Restrictions 


The  purpose  of  this  chapter  is  to 
sketch  broadly  the  legal  background  on 
which  deed  restrictions  rest  and  to  call 
attention  to  some  fundamental  prin- 
ciples which  should  be  observed  in  the 
construction  of  restrictive  clauses.  It  is 
not  proposed  to  give  an  exhaustive  treat- 
ment of  the  legal  foundations  and  legal 
peculiarities  of  deed  restrictions. 

Even  to  outline  the  most  significant 
legal  features  of  deed  restrictions  is  both 
difficult  and  dangerous.  It  is  difficult 
because  of  the  great  complexity  of  the 
law  of  real  property  and  restrictive 
agreements  form  but  a  small  fraction  of 
the  whole.  It  is  dangerous  in  that  any 
generalization  is  more  or  less  inaccurate 
and  misleading,  because  the  laws  of  the 
several  states  and  the  attitudes  of  their 
courts  vary  so  widely.  For  example, 
in  a  number  of  states  a  restriction  pro- 
hibiting the  sale  of  certain  property  to, 
or  the  occupancy  of  certain  property  by, 
persons  not  of  the  Caucasian  race  is 
valid.  But  California  regards  the  first 
prohibition  as  a  restraint  upon  alienation 
which  is  forbidden  by  its  Civil  Code.1 
The  case  of  Los  Angeles  Investment 
Company  v.  Gary2  involved  a  prohibition 
against  both  alienation  to  and  occupancy 
by  non-Caucasians  which  was  to  be  in 


'Civil  Code,  par.  711.  "Conditions  restraining 
alienation,  when  repugnant  to  the  interest  created, 
are  void."  However,  in  the  Alien  Land  Law  (G.  L., 
Act.  261)  initiated  and  approved  by  electors,  November 
2,  1920,  aliens  ineligible  for  citizenship  may  own  or 
lease  real  estate  as  provided  by  treaty  between  the 
United  States  and  foreign  powers,  and  not  otherwise. 
As  amended  in  May,  1927,  Act  261,  Sec.  9a,  the  burden 
of  proving  eligibility  to  citizenship  was  placed  on  the 
alien.  The  1920  statute  was  upheld  as  constitutional  in 
Porterfield  v.  Webb,  263  U.  S.  225  (1923),  which  involved 
a  lease  of  agricultural  land  to  a  Japanese.  An  interest- 
ing question  is  whether  a  condition  restraining  alien- 
ation to  a  non-Caucasian  who  is  ineligible  for  citizen- 


operation  until  January  1st,  1930.  The 
court  ruled  on  both  points. 

"The  condition  that  the  property  be  not 
sold,  leased,  or  rented  to  one  not  of  Cau- 
casian birth  is  clearly  a  restraint  on  aliena- 
tion. The  deed  likewise  purports  to  convey 
the  fee,  and  an  incident  of  an  estate  in  fee  is 
the  right  of  free  disposal  and  transfer.  The 
condition  therefore  is  repugnant  to  the  in- 
terest created  .  .  .  Our  conclusion  is 
that  the  condition  against  occupation  of  the 
property  by  anyone  not  of  the  Caucasian 
race  is  valid." 

Therefore,  in  California  any  restriction 
which  discriminates  in  this  way  must 
confine  itself  to  a  prohibition  against 
"use  and  occupancy,"  not  against  aliena- 
tion. This  illustration  merely  empha- 
sizes the  fact  that  rules-of-thumb  cannot 
be  applied  in  a  treatment  of  deed 
restrictions. 

A  deed  has  been  variously  defined. 
The  broad  definition3  of  a  deed  as  a 
contract  under  seal  and  delivered  is 
discarded  here  in  favor  of  a  definition 
which  defines  the  more  specific  uses  of 
the  term  as  it  is  found  in  the  law  of  real 
property:  'A  deed  is  the  instrument  by 
which  the  absolute  title,  or  interest,  in 
real  estate  is  transferred  from  the 
grantor,  or  owner,  to  the  grantee,  or 
purchaser."4 

ship  would  be  valid,  unless  contrary  to  treaty  stipula- 
tions, despite  the  general  prohibition  of  the  Civil  Code. 

2  181  Cal.  680,  186  Pac.  596  (1919).  The  case  in- 
volved persons  of  African  descent. 

3  William  C.  Robinson,  Elementary  Law  (Boston: 
Little,  Brown  and  Co.,  1910)  sec.  129.  "A  deed  is  a 
writing  sealed  and  delivered  between  the  parties;"  see 
also  Bouvier's  Law  Dictionary  (Rawle's  Edition,  St. 
Paul:  West  Publishing  Co.,  1914),  "DEED.  A  written 
instrument  under  seal,  containing  a  contract  or  agree- 
ment which  has  been  delivered  by  the  party  to  be  bound 
and  accepted  by  the  obligee  or  covenantee." 

4  Nathan  William  MacChesney,  Principles  of  Real 
Estate  Law  (New  York:  Macmillan  Co.,  1927)  p.  838. 


LEGAL  ASPECTS 


17 


The  essential  parts  of  a  deed,  as 
usually  enumerated,  are  the  premises, 
the  habendum,  the  tenendum,  the  redden- 
dum and  the  conclusion.  The  habendum 
and  tenendum  are  now  obsolete.5  Even  the 
premises  and  the  conclusion  are  rela- 
tively uniform  and  perfunctory;  their 
form  and  general  content  are  predeter- 
mined. The  reddendum,  therefore,  which 
contains  the  covenants  and  conditions 
imposed  by  the  grantor,  is  the  most  im- 
portant part  of  the  deed  from  the  point 
of  view  of  control  over  land  develop- 
ment. This  section  constitutes  the  flexi- 
ble and  dynamic  portion  of  the  instru- 
ment. The  clauses  can  be  formulated — 
within  the  limits  of  the  law,  of  course — 
to  exercise  whatever  degree  of  control  is 
desired.  It  might  be  mentioned  at  this 
point,  however,  that  restrictions  may  be 
created  by  other  instruments  than  deeds, 
provided  a  valuable  consideration  is 
involved.6  The  contract  of  sale  is  the 
medium  most  commonly  used,  when  the 
deed  is  not  the  vehicle  for  the  restric- 
tions. 

As  already  stated,  the  right  to  create 
deed  restrictions  rests  upon  the  right 
of  free  contract.  It  is  generally  con- 
ceded that  in  conveying  real  estate  the 
grantor  may,  within  certain  limits,  im- 
pose restrictions  on  the  use  of  that 
property.  In  the  case  of  Eckhartv.  Irons7 
the  court  states  a  position  which  is 
fairly  typical  when  it  says: 

"The  power  of  the  grantor  to  thus  impose 
limitations  and  restrictions  upon  the  use  and 

»/«</.,  p.  63. 

6  "The  fact  that  the  restriction  is  created  in  an  instru- 
ment independent  of  the  deed  conveying  title  is  of  no 
consequence,  as  long  as  there  is  a  valuable  consideration 
moving  to  and  from  the  signers."  Erichsen  v.  Tapert, 
172  Mich.  457  at  463  (1912). 

7  128  111.  568  at  579  (1889);  see  also  Frye  v.  Partridge, 
82  111.  267  (1876). 

8  Cooperative  Vineyards  Co.  v.  Ft.  Stockton  Irrigated 
Lands  Co.,  158  S.  W.  1191  (Tex.  Civ.  App.)  (1913); 
Schoonmaker  v.  Heckscher,  171  N.  Y.  App.  Div.  148, 
157  N.  Y.  Supp.  75  (1916). 


enjoyment  of  the  property  granted,  as  he 
may  deem  proper,  and  of  the  grantee  to 
accept  the  same,  cannot  be  denied,  unless 
opposed  to  public  policy." 

Occasionally  the  courts  have  gone  so  far 
as  to  describe  this  right  to  enter  into 
restrictive  agreements  as  "unquestion- 
able."8 

The  right  to  enter  into  restrictive 
agreements,  however,  is  not  unrestrained. 
Two  major  limitations  may  be  cited. 
Restrictions  may  not  be  (i)  contrary  to 
public  policy,9  or  (2)  "unreasonable,"10 
used  in  its  legal  sense.  The  general 
principle  has  been  established  that  in- 
dividuals in  their  agreements  cannot 
bind  themselves  to  do  that  which  is 
"injurious  to  the  public  or  against  the 
public  good."11  This  definition  of  what 
is  opposed  to  public  policy,  as  a  limita- 
tion on  the  power  of  a  grantor  to  impose 
restrictions,  presents  only  the  negative 
aspects.  One  of  the  cases  already  cited 
states  the  requirement  from  the  positive 
side:  "Such  a  restriction  on  the  use  of 
real  estate,  where  it  does  not  appear  that 
either  some  individual  or  the  public 
would  be  benefited  by  it,  would  be  con- 
trary to  public  policy  and  void."12  In 
other  words,  according  to  the  test 
established  here,  someone  must  be  defi- 
nitely benefited  by  the  restriction;  other- 
wise it  is  invalid  as  against  public  pol- 
icy. 

"Reasonableness"  is  frequently  set  up 
as  a  limitation  upon  the  drafting  of 
restrictive  agreements.    The  term  "rea- 

9  Mitchell  v.  Leavitt,  30  Conn.  587  (1862);  Hutchinson 
v.  Ulrich,  145  111.  336  (1893);  Cooperative  Vineyards  Co. 
v.  Ft.  Stockton  Irrig.  Lands  Co.,  supra  n.  8. 

10  Schoonmaker  v.  Heckscher,  supra  n.  8. 

11  See  Bouvier's  Law  Dictionary,  op.  cit.,  article  on 
"Public  Policy;"  also  article  on  "Void,"  "a  contract 
binding  the  maker  to  do  something  opposed  to  the 
public  policy  of  the  state  or  nation,  or  which  conflicts 
with  the  wants,  interest,  or  prevailing  sentiment  of 
the  people,  or  our  obligations  to  the  world,  or  is  re- 
pugnant to  the  morals  of  the  times,  is  void,  however 
solemnly  the  same  may  be  made." 

12  Mitchell  v.  Leavitt,  supra  n.  9. 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


sonableness"  in  law  means  more  than 
moderation.  Rationality  is  one  test  of 
the  legal  concept  of  "reasonableness," 
but  the  courts  often  apply  an  additional 
standard.  An  action  may  be  considered 
reasonable  if  it  is  just  according  to  the 
judgment  of  the  average  man,  if  it  is 
what  the  average  man  would  expect  to 
happen  under  the  circumstances.  This 
test  is  applied  by  the  courts  to  both 
private  and  public  means  of  control. 
Zoning  is  tested  in  terms  of  "reason- 
ableness" and  so  are  private  restric- 
tions.13 To  summarize  briefly,  restrictive 
agreements  in  deeds  are  contracts  which 
like  all  contracts  may  not  be  harmful 
to  the  public  nor  contrary  to  the  rational 
expectations  of  an  average  man. 

Having  considered  the  legal  basis  of 
restrictions,  it  is  pertinent  to  inquire 
into  some  of  the  mechanics  of  their 
structure.  Of  primary  importance  is 
consideration  of  the  difference  between  a 
restrictive  covenant  and  a  condition. 

In  spite  of  a  statement  by  a  Cali- 
fornia court  that  "the  distinction  be- 
tween conditions  and  covenants  is  a 
decided  one  and  the  principles  applic- 
able quite  different,"14  the  loose  use  of 
the  terms  warrants  an  examination  of 
their  respective  definitions. 

One  distinction  between  a  covenant 
and  a  condition,  often  mentioned  in  the 
literature  of  the  law,  is  that  the  latter 
impairs  the  estate  conveyed  whereas  the 
former  does  not  affect  the  estate.  But 
from  the  economic  standpoint  both 
covenants  and  conditions  appear  de- 
signed to  prevent  certain  acts  which 
would  impair  the  interest  conveyed  or 
assure  performance  of  certain  acts.    If  a 


purchaser  covenants  not  to  erect  a 
garage  and  use  it  for  a  residence  before 
building  the  main  house,  his  rights  to 
use  the  land  are  lessened,  sometimes  to 
his  disadvantage.  Without  going  so  far 
as  to  say  that  there  may  not  be  some 
cases  in  which  the  impairment  of  legal 
interests  or  estates  is  a  distinguishing 
factor,  the  chief  difference  between  a 
covenant  and  a  condition  is  the  remedies 
available  in  case  of  breach.  Restrictive 
covenants  will  be  enforced  in  equity.  An 
injunction  to  prevent  the  violation  of 
the  restriction  in  question  is  the  usual 
relief  sought.  The  question  of  damages 
is  a  secondary  alternative,  because  the 
amount  of  damages  is  difficult  to  as- 
certain for  land.  Sometimes  damages  are 
awarded  by  the  court  when  an  injunction, 
if  issued,  would  work  undue  hardship.15 
The  particular  kind  of  conditions  with 
which  deed  restrictions  are  concerned  is 
the  "condition  subsequent."  A  condi- 
tion subsequent  in  a  deed  provides  that 
the  estate  is  conveyed  contingent  upon 
the  happening  or  non-happening  of  a 
certain  event  or  upon  the  performance  or 
non-performance  of  certain  acts.  Stated 
more  technically,  "subsequent  condi- 
tions are  those  whose  effect  is  not  pro- 
duced until  after  the  vesting  of  the  estate 
or  bequest  or  the  commencement  of  the 
obligation."16  Violation  of  a  condition 
subsequent,  on  the  other  hand,  may  be 
remedied  through  a  court  of  law  by 
re-entry  of  the  property.17  The  effect  of 
a  condition  subsequent  is,  of  course,  to 
make  the  title  rest  less  securely  in  the 
grantee. 


13  "Restrictions  will  be  upheld  by  the  courts  provided 
they  are  reasonable."  Schoonmaker  v.  Heckscher, 
supra  n.  7. 

14  Los  Angeles  Investment  Co.  v.  Gary,  supra  n.  2. 

15  See  Page  v.  Murray,  46  N.  J.  Eq.  325  (1890);  Zipp  v. 
Barker,  55  N.  Y.  Supp.  246  (1898);  Jackson  v.  Steven- 
son, 156  Mass.  496  (1892). 


16  Bouvier's  Law  Dictionary,  op.  cit.,  article  on  "Con- 
dition." 

17  The  purposes  of  the  two  devices  are  also  quite 
different.  A  covenant  is  drawn  primarily  tor  the  pro- 
tection of  the  property  and  may  "run  with  the  land," 
thus  becoming  binding  not  only  upon  the  grantee  but 
upon  subsequent  holders  as  well.  In  so  tar  as  a  condition 
is  frequently  drawn  with  the  interests  of  the  grantor  in 
view,  it  may  be  said  to  be  more  in  the  nature  of  a 
personal  agreement. 


LEGAL  ASPECTS 


19 


The  following  quotation  summarizes 
the  clear-cut  legal  distinction  between 
covenants  and  conditions  subsequent. 

"A  condition  subsequent  is  also  to  be  dis- 
tinguished from  a  covenant,  a  breach  of 
which  cannot,  in  the  absence  of  a  statutory 
provision  to  the  contrary,  affect  the  estate  of 
the  convenantor,  but  gives  to  the  grantor  or 
lessor,  with  whom  the  covenant  is  made,  a 
right  of  action  to  recover  damages,  for  breach 
thereof,  or  occasionally  a  right  to  an  injunc- 
tion or  a  decree  for  specific  performance, 
neither  of  which  is  given  by  a  condition."18 

Thus  the  chief  distinction  lies  in  the 
remedies  available.  Which  of  these  de- 
vices the  subdivider  should  use  in  a  spe- 
cific instance  depends  on  his  purpose. 
Inasmuch  as  his  business  is  the  disposal 
of  subdivision  lots,  he  might  logically 
reserve  conditions  subsequent  for  only 
those  urgent  restrictions,  violation  of 
which  would  seriously  endanger  the  de- 
velopment and  thus  warrant  reposses- 
sion of  the  property. 

Much  litigation  has  arisen  as  a  result 
of  the  loose  use  of  the  terms.  The  courts 
do  not  look  with  favor  upon  anything 
which  tends  to  destroy  or  impair  an 
estate  in  land  and  hence  their  hostility 
to  "conditions  subsequent"  inserted  in 
deeds.  Speaking  generally,  the  evolution 
of  the  law  of  real  property  has  been  in 
the  direction  of  facilitating  the  transfer 
of  real  estate,  making  land  transactions 
more  and  more  comparable  to  com- 
modity transactions.  Therefore,  the 
attitude  of  the  courts  is  both  logical  and 
explainable,  for  a  condition  lessens  the 
security  of  the  title  conveyed. 

As  a  result  the  courts  will  always  con- 
strue a  condition  as  a  covenant  wherever 
possible.  The  following  quotation  is 
representative  of  the  ample  authority  on 
this  point. 

18  Herbert  Thorndike  Tiffany,  The  Law  of  Real  Prop- 
erty, (Chicago:  Callaghan  &  Co.,  1920),  Vol.  I,  p.  264. 

19  Robert  T.  Devlin,  Law  0/  Real  Property  and  Deeds, 
(.Chicago:  Callaghan  &  Co.,  191 1),  Vol.  2,  Sec.  970  c,  p. 
1812.    The  author  cites   as   a  leading  case  in  this  con- 


"Whether  the  provisions  of  a  deed  are  to 
be  construed  as  covenants  or  as  conditions 
must  be  determined  by  a  construction  of  the 
entire  instrument.  In  case  of  doubt  they  will 
be  construed  as  covenants  and  not  as  condi- 
tions in  order  to  prevent  a  forfeiture  of  the 
estate,  and  this  construction  is  to  be  reached 
regardless  of  the  technical  language  used  by 
the  parties."19 

Two  major  considerations  guide  the 
courts  in  determining  whether  a  restric- 
tion shall  be  construed  as  a  covenant  or  a 
condition.  The  first  and  most  important 
is  the  intention  of  the  parties  as  it  may 
be  gleaned  from  careful  examination  of 
the  entire  instrument  and  the  second  is 
the  language  of  the  agreement.  Fre- 
quently the  words  in  the  deed  restriction 
do  not  convey  the  intention  of  the 
parties  and  for  this  reason  the  two  ele- 
ments are  considered  separately.  A 
New  York  case20  states  clearly  a  posi- 
tion which  is  fairly  representative: 

"Although  the  words  of  the  clause  in  ques- 
tion (under  express  condition)  are  apt  to 
describe  a  condition  subsequent  reserved  by 
a  grantor,  we  are  in  nowise  obliged  to  take 
them  literally.  In  the  consideration  of  what, 
by  the  use  of  these  words,  was  imported  into 
the  conveyance,  we  are  at  liberty  to  affix  that 
meaning  to  them  which  the  general  view  of 
the  instrument  and  of  the  situation  of  the 
parties  makes  manifest.  Whether  they 
created  a  condition,  or  a  covenant,  must  de- 
pend upon  what  was  the  intention  of  the 
parties;  for  covenants  and  conditions  may 
be  created  by  the  same  words." 

Thus,  when  a  condition  subsequent  is 
to  be  created,  that  intention  should  be 
stated  beyond  question  of  doubt.  Such 
phrases  as  "under  this  express  condition" 
and  "provided  always"  and  "these 
presents  are  upon  the  express  condition 
that"  are  not  sufficient  for  this  purpose,21 


nection  Minard  v.  Delaware,  Lackawanna  and  Western 
Railroad  Co.,  1,39  Fed.  60  (1905). 

20  Post  v.  Weil,  115  N.  Y.  361  at  369  (1889). 

21  Koch  v.  Streuter,  232  111.  594  (1908);  McCusker  v. 
Goode,  185  Mass.,  607  71  N.  E.  76  (1904);  Druecker 
v.  McLaughlin,  235  111.  367,  85  N.  E.  647  (1908). 


20 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


however.  The  courts  regard  them 
merely  as  means  of  emphasis  and  not  as 
introducing  a  new  and  separate  idea 
which  would  involve  forfeiture  of  the 
estate  as  a  penalty  for  their  violation. 
In  order  to  create  a  condition  subsequent 
the  most  satisfactory  method  seems  to 
be  to  include  a  re-entry  clause  but  even 
this  inclusion  will  not  guarantee  con- 
struction of  the  restriction  by  the  courts 
as  a  condition  subsequent.  If  the  spirit 
of  the  instrument  as  a  whole  or  the 
situation  of  the  parties  at  the  time  the 
agreement  was  entered  into  suggests 
the  slightest  doubt  as  to  the  creation  of 
a  condition,  the  courts  will  construe  the 
condition  as  a  covenant. 

Another  important  item  in  what  may 
be  called  the  legal  mechanism  of  deed 
restrictions  has  to  do  with  the  question 
of  when  restrictions  may  "run  with  the 
land."  The  major  tests  of  covenants  run- 
ning with  the  land  are  whether  they  per- 
tain to  the  use,  the  value  or  the  estate  con- 
veyed in  that  land.  All  of  these  tests  are 
represented  in  the  following  quotation: 

"In  order  that  a  covenant  may  run  with 
the  land  and  bind  assignees  it  must  bear 
intimate  relation  with  and  concern  to  the 
estates  or  lands  conveyed     .     .     . 

"It  runs  with  the  land  when  performance 
is  made  a  charge  upon  the  land  .  .  . 
when  performance  affects  the  value  of  the 
land     .     .     . 

"Where  land  is  divided  into  parcels  con- 
veyed to  different  grantees,  a  covenant  is 
divided  among  them  and  each  may  sue  or  be 
sued  on  his  portion  of  the  covenant."22 

The  benefit  of  the  land  conveyed  is  the 
purpose  of  covenants  running  with  the 
land.23  This  is  the  legal  way  of  stating 
the  case,  but  in  the  last  analysis  the 
benefit  of  the  holders  of  the  land  would 


22  Christopher  G.  Tiedeman,  The  American  Law  of 
Real  Property,  (St.  Louis:  Thomas  Law  Book  Co., 
1924),  4th  ed.,  Sec.  626. 

23  Berryman  v.  Hotel  Savoy  Co.,  160  Cal.  559  0911)- 

24  Devlin,  op.  cit.,  sec.  990;  the  author  cites  in  this 
connection  the  case  of  Skinner  v.  Shepard,  130   Mass. 


seem  to  be  the  aim.  When  restrictive 
agreements  benefit  only  the  vendor, 
they  are  regarded  rather  as  personal 
covenants,  binding  only  upon  the  orig- 
inal parties  to  the  contract.  Stated 
somewhat  differently,  "in  the  absence 
of  evidence  that  the  restriction  was  im- 
posed for  the  benefit  of  other  land,  it  is 
construed  as  a  personal  covenant  merely 
with  the  grantor."24 

With  reference  to  enforcement,  the 
fact  that  certain  restrictions  do  run  with 
the  land  is  not  a  basis  for  general  action. 
Enforcement  of  such  restrictions  rests 
on  the  theory  that  they  indicate  a  gen- 
eral plan  of  improvement  and  purchasers 
with  notice  of  the  plan  may  be  compelled 
by  suit  of  any  owner  of  a  lot  covered  by 
this  plan  to  comply  with  the  covenant 
made  by  the  subdivider-vendor.2"5  This 
right  to  enforce  passes  with  the  land  for 
the  duration  of  the  restriction.  As  to 
phraseology,  mere  statement  to  the 
effect  that  the  restrictive  covenants  will 
run  with  the  land  is  not  sufficient.  The 
essence  of  the  restriction  itself  is  the 
determining  factor.26 

Covenants  running  with  the  land 
are  perpetuated  through  the  recording 
process  upon  which  the  whole  system  of 
land  titles  and  conveyances  has  rested 
for  many  years.  The  purposes  of  the 
recording  statutes  are  to  preserve  the 
"muniments"  or  evidences  of  title  and 
to  give  the  community  notice  of  all 
changes  in  the  ownership  of  property  and 
the  circumstances  accompanying  such 
change  of  ownership.  The  theory  under- 
lying the  recording  acts  has  been  to  place 
on  anyone  dealing  in  land  the  legal  obli- 
gation of  consulting  the  records  and  ac- 
quainting himself  with  their  contents. 
In  other  words,  anyone  dealing  in  land 
is  presumed  to  have  knowledge  of  the 

180  (1881);  see  also  Wood  v.  Stehrer,  119  Md.  143,  86 
Atl.  128  (1912). 

26  Wiegman  v.  Kusel,  270  111.  520  (1915). 

26  See  Tiffany,  op.  cit.,  Vol.  II,  p.  1415. 


LEGAL  ASPECTS 


21 


substance  and  effect  of  every  properly- 
recorded  instrument.27 

Control  over  land  utilization,  which  is 
the  main  concern  of  this  study,  is  ex- 
ercised through  covenants  which  are 
part  of  the  recorded  plats  or  instruments 
of  conveyance.  These  restrictive  cove- 
nants therefore  become  part  of  the  public 
record  and  all  subsequent  holders  are 
bound  by  their  content  under  the  doc- 
trine of  constructive  notice.  The  essence 
of  constructive  notice  is  to  be  found  in 
the  following  quotation: 

"The  test  is  a  plain  and  simple  one.  It  is 
whether  the  record,  if  examined  and  read  by 
the  party  dealing  with  the  premises,  would 
be  an  actual  notice  to  him  of  the  original  in- 
strument, and  of  all  its  parts  and  provisions. 
By  the  policy  of  the  recording  acts,  such  a 
party  is  called  upon  to  search  the  records, 
and  he  has  a  right  to  rely  upon  what  he  finds 
there  entered  as  a  true  and  complete  trans- 
script  of  any  and  every  instrument  affecting 
the  title  to  the  lands  with  respect  to  which  he 
is  dealing.  A  record  can  only  be  constructive 
notice,  at  most,  of  whatever  is  contained 
within  itself.  Finally,  the  record  will  not  be 
notice  unless  it  and  the  original  instrument 
of  which  it  is  a  copy  correctly  and  sufficiently 
describe  the  premises  which  are  to  be  af- 
fected, and  correctly  and  sufficiently  state  all 
other  provisions  which  are  material  to  the 
rights  and  interests  of  subsequent  parties. 
The  premises  should  at  least  so  be  described 
and  identified  that  a  subsequent  purchaser 
or  encumbrancer  would  have  the  means  of 
ascertaining  with  accuracy  what  they  were 
.  .  .  The  language  both  of  the  original 
and  of  the  record  must  be  such  that  if  a  sub- 
sequent purchaser  or  encumbrancer  should 
examine  the  instrument  itself,  he  would 
obtain  thereby  an  actual  notice  of  all  the 
rights  which  were  intended  to  be  created  or 
conferred,  by  it."28 


27  Johnson  v.  Hess,  126  Ind.  298  (1890). 

28  John  Norton  Pomeroy,  Equity  Jurisprudence  (San 
Francisco:  Bancroft-Whitney  Co.,  1901),  2d  ed.,  vol.  2, 
sec.  654. 

29  Ewertsen  v.  Gerstenberg,  186  111.  344  at  349  (1900) 
".  .  .  for  we  are  satisfied  from  the  evidence  that 
this  plat  was  referred  to  and  made  a  part  of  the  parti- 
tion deed  and  subsequent  conveyances  and  has  been 
constantly  recognized  by  all  the  lot  owners  as  a  common 


This  statement  ties  up  the  doctrine  of 
constructive  notice  very  definitely  with 
the  recording  acts.  Any  part  of  the  pub- 
lic record  is  thus  binding  upon  subse- 
quent holders,  for  they  are  charged  with 
notice  of  its  contents. 

This  holds  true  even  though  the  con- 
veyances to  these  subsequent  holders 
do  not  actually  mention  the  restriction.29 

Consideration  of  the  doctrine  of  notice 
should  not  omit  some  reference  to  the 
concept  of  actual  notice.  Actual  notice 
is  also  binding  on  subsequent  purchasers. 
But  a  question  may  easily  be  raised  as 
to  where  to  draw  the  line  between  actual 
and  constructive  notice.  One  writer 
goes  so  far  as  to  say  that  the  distinction 
is  relatively  unimportant,  unless  some 
statute  requires  actual  notice  under  cer- 
tain circumstances.  The  following  quo- 
tation illustrates  this  point  of  view: 

"And  so  the  presence  of  structures  upon 
the  property  may  be  sufficient  to  charge  a 
purchaser  with  actual  notice  of  an  easement 
upon  the  property,  provided  he  has  actual 
knowledge  of  such  structures.  But  if  he  were 
to  be  charged  with  notice  of  the  easement  by 
reason  of  the  existence  of  the  structures, 
independently  of  his  having  knowledge  of 
them,  the  notice  would  be  constructive  and 
not  actual."30 

Consideration  of  notice  and  its  bind- 
ing effect  upon  purchasers  leads  logically 
to  a  discussion  of  the  enforcement  of 
deed  restrictions.  This  phase  of  the  sub- 
ject falls  under  two  heads:  What  are  the 
methods  of  enforcing  deed  restrictions 
and  by  whom  are  they  enforceable? 


source  of  title  and  that  Ewartsen  had  notice  of  it  and  of 
said  restrictions  and  is  now  bound  by  them  unless  these 
restrictions  have  ceased  to  exist  or  are  no  longer  en- 
forceable against  him  or  his  said  lots,  in  equity,  for 
reasons  hereinafter  stated.  His  property  was  not  re- 
lieved from  their  bindihg  force  merely  because  they 
were  not  expressly  reserved  in  the  conveyance  to  him, 
or  in  others  of  the  deeds  in  his  chain  of  title."  See  also 
Library  Neighborhood  Assn.  v.  Goosen,  229  Mich.  89 
(1924). 

30  Tiffany,  op.  cit.,  vol.  2,  p.    2246.     See  also  entire 
sec.  573. 


11 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


As  stated  previously,  deed  restrictions 
are  enforceable  by  injunction  from  a 
court  of  equity  and  by  re-entry  proceed- 
ings in  a  court  of  law  depending  on 
whether  the  restrictions  are  covenants 
or  conditions. 

Of  greater  importance  is  the  question 
of  who  may  enforce  these  restrictions. 
The  right  of  enforcement  follows  the 
benefited  land.  Thus  restrictions  may 
be  classified  from  the  point  of  view  of 
enforcement  under  two  general  headings: 
(i)  restrictions  drawn  for  the  benefit  of 
the  grantor  are  enforceable  by  him  and 
his  assigns  in  possession  of  the  bene- 
fited property  against  any  or  all  grant- 
ees; and  (2)  restrictions  drawn  to  carry 
out  a  general  plan  for  development  are 
enforceable  by  any  grantee  against  any 
other  grantee. 

Restrictions  of  this  latter  class  are 
most  important  for  this  study  and  many 
cases  might  be  cited  to  illustrate  the 
principle  of  enforcement  in  such  in- 
stances— namely,  that  the  holders  of  the 
title  to  the  benefited  land  have  the 
right  to  enforce  the  restrictive  agree- 
ments.31 

Restrictions  in  pursuance  of  a  general 
scheme  are  binding  upon  all  who  take 
with  notice  thereof  and  are  enforceable 
in  equity  by  any  one  of  these  purchasers 
against  any  other.32  In  other  words,  it  is 
privity  of  estate  which  counts  in  such 
cases  and  not  privity  of  contract.  The 
personal  element  becomes  secondary 
and  the  benefited  land  is  all  important 
in  the  eyes  of  the  law. 

31  Summers  v.  Beeler,  90  Md.  475  (1899);  Judd  v. 
Robinson,  41  Colo.  222  (1907);  McNeil  v.  Gary,  40 
App.  D.  C.  397  (1913);  Godley  v.  Weisman,  113  Minn. 
I  (1916);  Wright  v.  P/rimnier,  99  Neb.  447  (1916). 

32  See  Pomeroy,  op.  cit.,  vol.  4,  sec.  1693;  also  Alien  v. 
City  of  Detroit,  167  Mich.  464  (1911). 

33  268  Mo.  680,  at  689  (1916);  see  also  Wright  v. 
Pfrimmer,  supra  n.  3  at  451,  where  the  court  says: 
■"Restrictive  covenants  being  in  derogation  of  the  land- 
owner's free  use  of  his  property,  one  who  claims  a  right 
to  enforce  such  covenants  has  the  burden   of  proving 


In  enforcing  deed  restrictions  there  are 
several  things  which  the  courts  take  into 
consideration  in  their  interpretation  of 
the  instruments.  These  items  constitute 
a  miscellaneous  group  of  considerations 
which  can  best  be  treated  en  masse  be- 
cause they  are  interrelated  and  over- 
lapping in  their  operation.  In  the  first 
place,  the  natural  inhibition  of  the  courts 
against  restrictions  must  be  considered, 
for  the  courts  tend  to  look  with  disfavor 
on  any  impediments  to  the  free  use 
of  the  landowner's  property.  A  Mis- 
souri court  states  the  point  concisely 
in  the  case  of  7Ann  v.  S idler33  where 
it  says  that  "a  restrictive  covenant 
lessens  the  fee  and  is  not  favored 
at  law.  It  should  therefore  be  made 
manifest  in  no  uncertain  manner  and  not 
left  entirely  to  implication     .     .     ." 

As  a  corollary  to  the  presumption 
against  restrictions  is  the  inclination  of 
the  courts  to  construe  restrictions  in 
favor  of  free  use  of  the  property  where- 
ever  the  slightest  doubt  exists  as  to  the 
meaning  of  the  covenant  or  the  inten- 
tion of  the  parties.  A  host  of  cases34 
might  be  cited  but  the  opinion  of  a 
Pennsylvania  court  in  Johnson  v.  Jones3'3 
sums  up  the  general  attitude  on  this 
point  as  follows:  ".  .  .  all  doubts 
are  to  be  resolved  against  the  restriction 
and  in  favor  of  the  free  and  unrestricted 
use  of  the  property." 

The  intention  of  the  parties  to  the 
contract  has  already  been  referred  to, 
both  in  connection  with  the  distinction 


that  they  were  made  for  his  benefit;"  also  Mc.Xichol  v. 
Townsend,  73  N.  J.  Eq.  276  (1907);  Sharp  v.  Ropes, 
no  Mass.  381  (1872);  Anderson  v.  Stewart,  2S<  111.  605 
(1918). 

31  Eckhart  v.  Irons,  128  111.  568  (1889);  Melson  v. 
Ormsby,  169  la.  522  (1915);  Easterbrook  v.  Hebrew  L. 
Orphan  Soc.,8$  Conn.  289(1912);  Hutchinson  v.  U/rich, 
145  111.  336  (1893);  Peabody  Heights  Co.  v.  Willson, 
82  Md.  186  (1895);  Schoonmaker  v.  Heckscher,  supra 
n.  8  at  77.  Randall  v.  Atlanta  Adv.  Serv.  159  Ga.  217 
(1924);  Curtis  v.  Rubin,  244  111.  88  (1910). 

35  244  Pa.  St.  386  at  389  (1914). 


LEGAL  ASPECTS 


23 


between  a  covenant  and  a  condition  and 
immediately  above  in  connection  with 
the  construction  in  favor  of  free  use  of 
the  property.  The  intention  of  the 
parties  is  a  controlling  factor  in  the  inter- 
pretation and  enforcement  of  deed  re- 
strictions, as  it  is  in  all  forms  of  contract. 
The  rather  elaborate  procedure  by  which 
intention  is  determined  in  restrictive 
clauses  is  described  by  the  following 
quotation  from  an  Iowa  opinion. 

"Therefore  courts  of  equity  have  recog- 
nized the  necessity  of  looking  beyond  the 
mere  printed  restriction,  to  the  parties  them- 
selves; the  subject  matter  of  the  restriction; 
the  conditions  as  they  exist,  surrounding  the 
subject  matter  of  the  restriction;  the  topog- 
raphy of  the  country  surrounding  the  place 
affected  by  the  restriction;  the  scheme  and 
purpose  to  accomplish  which  the  restriction 
was  made;  and  this  in  order  to  ascertain  the 
intent  of  the  parties  in  respect  to  the  prop- 
erty conveyed."36 

It  may  be  said,  therefore,  that  the  inten- 
tion of  the  parties  is  central  in  the 
interpretation  of  deed  restrictions  and 
therefore  in  their  enforcement.37 

The  intention  of  the  parties  is  ma- 
terially aided  by  the  drawing  of  restric- 
tions in  connection  with  a  plan  for  the 
development  of  an  entire  tract.  This 
plan  shows  the  basis  for  the  restrictions 
and  pictures  what  the  parties  to  the  con- 
tract propose  to  do.  In  their  decisions 
the  courts  frequently  comment  upon  the 
presence  or  absence  of  a  general  plan 
for  development  and  their  judgment 
often  hinges  on  this  point.38  The  state- 
ment has  been  made  that  in  Ohio,  where 
the  attitude  of  the  court  seems  to  be 
rather    unfavorable    to    restrictions,    in 


38  Mehon  v.  Ormsby,  supra  n.  34  at  530. 

37  Peabody  Heights  Co.  v.  Willson,  supra  n.  34;  Post  v- 
Weil,  supra  n.  20;  Godley  v.  Weisman,  supra  n.  31; 
Schoonmakcr  v.  Heckscher,  supra  n.  8. 

38  Killien  v.  Goodman,  229  Mich.  393,  at  399  (1924); 
High/and  Realty  Co.  v.  Groves,  130  Ky.  374,  113  S.  W. 
420  (1908);  Wright  v.  Pjrimmer,  supra  n.  31,  at  451; 
Library  Neighborhood  Assn.  v.  Goosen,  supra  n.  29. 


seven  cases  out  of  eight  in  the  Supreme 
Court  the  restrictions  were  upheld  when 
they  applied  to  the  entire  tract.  In  the 
eighth  case  the  restrictions  varied  from 
lot  to  lot  and  were  rejected.39  This 
evidence  is  in  no  sense  conclusive  but  it 
is  an  interesting  sidelight  on  the  im- 
portance that  attaches  to  a  plan  of 
development  as  a  basis  for  deed  restric- 
tions. 

The  idea  is  sometimes  advanced  that 
restrictions  drawn  in  connection  with  a 
plan  for  development  are  in  the  nature 
of  an  easement.40  Restrictive  agree- 
ments may  be  said  to  constitute  a 
negative  easement.  Each  lot  relinquishes 
some  portion  of  the  free  use  which  would 
normally  accrue  to  its  owner  and  in 
return  benefits  from  a  similar  relinquish- 
ment by  other  parcels  in  the  tract.  The 
opinion  of  a  New  York  court  in  Lands- 
berg  v.  Rosenwasser  contains  an  interest- 
ing statement  to  this  effect. 

".  .  .  where  a  single  tract  is  divided 
into  parcels,  and  the  parcels  are  conveyed 
by  deeds  containing  similar  restrictive  cove- 
nants pursuant  to  a  uniform  plan  adopted 
for  the  benefit  of  all,  mutual  negative  ease- 
ments are  created,  each  parcel  becoming  a 
servient  and  dominant  tenement     .     .     ."41 

However,  there  are  times  when,  al- 
though the  intention  of  the  parties  is 
clear,  and  the  plan  of  development  is 
definite,  the  courts  will  refuse  to  enforce 
restrictions  in  deeds.  The  most  impor- 
tant instance  is  that  involved  when  the 
character  of  the  district  has  so  changed 
that  the  enforcement  of  the  restrictions 
would  work  a  real  hardship  to  the  land- 


39  Planning  Problems,  1916,  Papers  and  Discussions 
of  the  National  Conference  on  City  Planning,  p. 
108-109. 

40  C.  P.  Berry,  Digest  of  the  Law  of  Restrictions  on 
the  Use  of  Real  Property  (Chicago:  Geo.  I.  Jones,  1 91 5) 
P-  .367- 

41  124  N.  Y.  App.  Div.  559,  at  561,  (1908);  see  also 
Curtis  v.  Rubin,  supra  n.  34;  Riverbank  Imp.  Co.  v. 
Bancroft,  209  Mass.  217,95  N.  E.  216  (1911);  Hen- 
derson v.  Champion,  83  N.J.  Eq.  554,  91  Atl.332  (1914). 


24 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


owner.  For  example,  a  district  may  be 
restricted  to  single-family  residences  but 
obviously  equity  would  be  endangered  if 
landowners  in  that  area  were  restricted 
to  the  erection  of  single-family  residences 
after  an  elevated  line  had  traversed  the 
center  of  that  district.  The  presence  of 
the  elevated  line  changed  the  character 
of  the  district  and  a  court  of  equity 
would  not  be  inclined  to  enforce  strict 
residential  restrictions  because  such  en- 
forcement would  not  secure  the  original 
purposes  of  the  restrictions.42  In  order 
to  decide  whether  a  district  has  so 
changed  as  to  render  enforcement  of 
deed  restrictions  inequitable,  the  courts 
reason  with  respect  to  two  points:  Will 
enforcement  of  the  covenants  restore  the 
district  to  the  original  character  which 
the  restrictions  were  designed  to  create 
and  preserve;  Is  the  change  in  the  dis- 
trict the  result  of  violation  of  the  restric- 
tions or  of  other  causes  in  which  the 
restrictive  covenants  are  not  involved?43 
In  this  connection  an  Iowa  court  gave  a 
very  broad  interpretation  of  its  powers 
in  equity  when  it  said: 

"Again  it  has  been  the  holding  of  this  court 
that  specific  performance  of  a  building  re- 
strictive covenant  rests  largely  in  the  sound 
discretion  of  the  court,  and  relief  will  be 
denied  if  the  defendant  will  be  subject  to 
greater  hardship  or  consequences  would  be 
inequitable,  but  pecuniary  loss  to  defendant 
will  not  itself  alone  prevent  enforcement."44 

The  decisions  of  the  courts  with  re- 
spect to  change  in  the  character  of  the 
district    are    particularly    important    in 

42  Columbia  College  v.  Thatcher,  87  N.  Y.  311  (1882); 
Kneip  v.  Schroeder,  255  111.  621  (1912);  Moore  v.  Curry, 
176  Mich.  456,  142  N.  W.  839  (1913);  Leonard  v.  Hotel 
Majestic  Co.,  17  N.  Y.  Misc.  229,  40  N.  Y.  Supp.  1044 
(1896). 

43  Jackson  v.  Stevenson,  supra  n.  15:  "It  is  evident 
that  the  purpose  of  the  restrictions  as  a  whole  was  to 
make  the  locality  a  suitable  one  for  residences;  and  that 
owing  to  the  general  growth  of  the  city  and  the  present 
use  of  the  whole  neighborhood  for  business,  this  purpose 
can  no  longer  be  accomplished.  If  all  the  restrictions 
imposed   in   the  deeds  should   be  rigidly  enforced,  it 


conflicts  between  zoning  ordinances  and 
deed  restrictions.  By  the  exercise  of 
this  discretionary  power  a  court  may 
prevent  or  sanction  transition  to  a  lower 
use  and  thus  exert  a  very  considerable 
influence  on  the  development  of  the  city 
pattern. 

Up  to  this  point  attention  has  been 
focussed  on  the  enforcement  of  restric- 
tions and  their  proper  construction  to 
insure  enforcement.  The  question  natur- 
ally presents  itself:  How  may  restric- 
tions be  set  aside?  General  Nathan 
William  MacChesney  has  summarized 
the  means  by  which  deed  restrictions 
may  be  released  or  extinguished:45 

1.  "By  expiration  of  the  specified  time  limit; 

2.  By  the  uniting  in  one  ownership  of  the 
land  benefited  and  restricted; 

3.  By  the  parties  to  the  restriction  agree- 
ment releasing  each  other; 

4.  By  prior  violation  of  the  restriction; 

5.  Where  the  character  of  the  locality  has  so 
changed  that  the  restriction  has  lost  its 
effectiveness  and  a  court  of  equity  will  in 
its  discretion  deny  relief  against  its  viola- 
tion." 

This  list  states  clearly  the  methods  avail- 
able for  setting  aside  deed  restrictions 
and  requires  but  little  comment.  Points 
4  and  5  have  already  been  touched  upon. 
The  first  point  is  obvious,  but  the  par- 
ticular problems  clustering  about  this 
matter  of  the  duration  of  restrictive 
covenants  will  be  discussed  in  greater 
detail  in  a  later  chapter. 

A  summary  of  the  legal  aspects  of  deed 
restrictions  from  the  point  of  view  of  the 
subdivider    who    creates    them    should 


would  not  restore  to  the  locality  the  residential  char- 
acter, but  would  merely  lessen  the  value  of  every  lot  for 
business  purposes.  It  would  be  oppressive  and  inequit- 
able to  give  effect  to  the  restriction;  and  since  the 
changed  condition  of  the  locality  has  resulted  from 
other  causes  than  their  breach,  to  enforce  them  in  this 
instance  could  have  no  other  effect  than  to  harass  and 
injure  the  defendant,  without  effecting  the  purpose  for 
which  the  restrictions  were  originally  made." 

44  Me  Is  on  v.  Ormsby,  supra  n.  34,  at  533  (191 5)- 

46  Op.  cit.,  p.  589. 


LEGAL  ASPECTS 


25 


emphasize  the  legal  points  to  be  noted 
most  particularly  in  drafting  restrictive 
agreements.  A  primary  consideration  is 
the  antipathy  of  the  courts  to  any  meas- 
ure which  may  be  an  impediment  to  the 
free  use  of  land  or  its  free  alienation. 
At  the  same  time,  however,  the  courts 
do  recognize  the  right  of  landowners  to 
regulate  the  use  of  the  land  they  con- 
vey and  the  law  will  uphold  restrictive 
agreements  provided  they  meet  certain 
requirements.  The  most  important  re- 
quirement is  that  the  instrument  express 
clearly  and  definitely  the  intention  of 
the  parties  to  the  agreement.  If  this  in- 
volves making  the  title  hinge  upon  a 
condition  subsequent,  that  fact  should 
be  so  stated  that  the  courts  may  clearly 
ascertain  it.  The  other  main  require- 
ment is  that  the  restrictions  be  reason- 
able— in  other  words,  that  the  stipula- 
tions be  in  harmony  with  the  general 
interest  and  in  more  or  less  obvious 
pursuance  of  a  preconceived  plan.  If  the 
courts  can  detect  a  reasonable  intention 
of  the  parties  with  respect  to  the  utiliza- 
tion of  the  land  affected,  the  restrictive 
covenants  are  fairly  sure  of  being  sus- 
tained at  law.  The  limitations  which 
surround  the  use  of  the  devices  have 
been  considered  in  some  detail.  They  are 
the  result  of  the  efforts  of  the  law  to  pre- 
vent too  great  control  by  the  overzealous 
or  ill-advised  creator  of  restrictions  or  by 
the  "dead  hand."46 

In  addition,  a  summary  should  not 
omit  to  call  attention  once  more  to  the 
different  requirements  of  the  separate 
states  with  respect  to  the  form  and  con- 
tent of  conveyances.  The  importance  of 
carefully  drafting  these  agreements  so 
that  they  will  accord  with  the  laws  of  the 

46  The  phrase,  the  "dead  hand",  refers  to  "concentra- 
tion of  property  without  fluidity,  without  being 
amenable  to  control"  which  the  law  seeks  to  prevent. 
Richard  T.  Ely,  Property  and  Contract  in  Their  Relation 
to  the  Distribution  of  Wealth,  (New  York,  Macmillan 
Co.,  1914),  p.  455. 


particular  state  in  which  they  are  to 
operate  cannot  be  overemphasized. 

A  summary  from  the  legal  point  of 
view  should  show  the  trend  in  the  atti- 
tude of  the  courts  with  reference  to  deed 
restrictions.  The  importance  which  the 
courts  are  attaching  to  the  existence  of  a 
general  scheme  for  the  development  of  a 
large  area  is  very  significant.  Such  a 
general  plan  is  held  to  be  evidence  of  a 
certain  mutuality  of  interest  and  purpose 
which  is  dominant  in  the  development 
of  legal  principles.  The  increasing  use  of 
the  phrase  "equitable  easements"  to 
describe  these  agreements  indicates  the 
tendency  to  emphasize  the  mutual  na- 
ture of  the  restrictions.  But  this  mutual- 
ity centers  in  the  land.  The  parties  are 
rather  incidental  and  the  land  is  all-im- 
portant. Equitable  action  involving 
restrictions  of  this  kind  rests  on  the 
interest  in  the  land  rather  than  on  con- 
currence in  an  agreement.47  In  other 
words,  an  equitable  interest  as  opposed 
to  a  legal  interest  may  be  the  authority 
for  action  in  the  courts.48  This  attitude 
of  the  courts  amounts  almost  to  a  state- 
ment that  deed  restrictions  in  pursuance 
of  a  general  scheme  constitute  automatic 
control  over  land  development,  in  the 
sense  that  the  human  agency  is  not  cen- 
tral in  their  operation.  The  increasing 
use  of  this  form  of  control  particularly  in 
new  residential  subdivisions  promises  op- 
portunity for  the  development  of  other 
important  legal  rulings  in  the  future. 

From  the  economic  point  of  view  the 
significance  of  the  legal  aspects  of  deed 
restrictions  is  found  in  their  effect  on  the 
potentialities  of  this  device  for  control- 
ling the  use  of  land  and  the  relationships 
between  persons  arising  out  of  such  use. 
Although  the  courts  may  emphasize  the 


47  Emphasis  is  being  placed  on  "privity  of  estate" 
rather  than  "privity  of  contract." 

48  See  Pomeroy,  op.  cit.,  vol.  4,  sec.  1693. 


26 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


importance  of  the  land  itself,  as  when 
covenants  are  said  to  run  with  the  land, 
the  economist  is  concerned  with  the 
human  relations  which  at  various  times 
center  on  a  particular  plot  of  land.  To 
him  the  effects  of  judicial  interpretations 
of  deed  restrictions  upon  the  parties  to 
land  bargains  are  the  most  important 


considerations.  This  brief  examination 
of  the  legal  aspects  shows  that  deed  re- 
strictions, if  carefully  drawn,  are  a  po- 
tent form  of  control.  The  courts  will 
uphold  them,  within  limits,  and  persons 
seeking  to  protect  their  investments  in 
land  may  with  some  confidence  resort  to 
this  device. 


CHAPTER  IV 

Restrictive  Clauses  Concerning  Type  and  Use  of  Structures  and  Lot  Area 


In  studying  deed  restrictions  as  a  form 
of  control  the  attempt  was  made  to 
obtain  the  necessary  information  from 
instruments  actually  in  use  in  develop- 
ments over  the  country.  Two  main 
sources  were  used  in  securing  the  deed 
restrictions  for  the  analysis  contained  in 
these  chapters.  Of  the  84  deeds  con- 
sidered 55  were  obtained  from  members 
of  the  Home  Building  and  Subdividers 
Division  of  the  National  Association  of 
Real  Estate  Boards  and  the  Chicago 
Real  Estate  Board.  The  data  on  the 
other  29  were  taken  from  a  charted  sum- 
mary1 of  deed  restrictions  on  properties 
planned  by  Olmsted  Brothers,  of  Brook- 
line,  Massachusetts;  therefore  the  in- 
formation is  not  so  complete  as  for  the 
other  55.  However,  they  afford  oppor- 
tunity for  interesting  comparisons,  par- 
ticularly in  view  of  the  fact  that  23  of 
the  29  Olmsted  cases  antedate  1920, 
while  the  majority  of  the  other  group  of 
55  cover  subdivisions  developed  since 
that  date  and  in  most  cases  since 
1924. 

In  view  of  the  sources  from  which  the 
data  were  obtained,  it  cannot  be  said 
that  the  restrictions  analyzed  here  are 
typical  of  the  subdivision  business  as  a 
whole.  The  Home  Builders  and  Sub- 
dividers  Division  of  the  National  Asso- 
ciation of  Real  Estate  Boards  includes 
in  its  membership  the  developers  of  most 
of  the  better-class  subdivisions  in  the 
country.  Likewise  those  subdividers  who 
have  employed  landscape  architects  of 
national  reputation  such  as  Olmsted 
Brothers  are  above  the  average  in  the 
business.    It  should  therefore  be  empha- 

1  See  Landscape  Architecture,  H.  V.  Hubbard,  "Land 
Subdivision  Restrictions"  (Oct.,  1925). 


sized  at  the  outset  that  the  concern  here 
is  rather  with  the  different  types  of  con- 
trol and  their  effectiveness  than  with 
the  extent  of  their  use. 

The  material  collected  is  so  diverse 
and  so  detailed  that  some  method  of 
condensing  it  seemed  desirable.  Hence, 
a  series  of  tables  has  been  prepared  to 
show  the  differences  as  well  as  the  simi- 
larities between  separate  sets  of  deed 
restrictions.  The  brevity  necessary  in 
making  such  a  table  impairs  somewhat 
the  accuracy  of  the  statements  but  this 
may  be  balanced  by  the  value  to  be  de- 
rived from  being  able  to  compare  and 
visualize  the  wide  divergencies  in  the 
scope  and  character  of  the  restrictive 
sections  of  the  separate  deeds. 

Restrictions  on  the  Type  and  Use  of 
Structures 

The  developer's  plan  is  the  starting 
point  for  a  discussion  of  restrictions  on 
the  type  and  use  of  structures,  for  the 
subdivider  must  decide  at  the  outset 
what  variety  of  uses,  if  any,  he  is  going 
to  have  in  his  development.  If  more 
than  one  type  of  use  is  to  be  permitted, 
it  is  of  course  advisable  to  divide  the 
subdivision  into  carefully  denned  use 
districts  and  for  further  protection  to 
designate  both  the  uses  permitted  and 
those  prohibited. 

Taking  the  prohibitions  first,  the  most 
obvious  are  the  nuisances.  The  term 
"nuisance"  has  a  very  broad  meaning 
when  used  in  connection  with  residential 
areas,  for  almost  any  use  not  strictly 
residential  in  character  is  a  nuisance. 
The  lists  of  nuisances  vary  widely,  in- 
cluding the  most  obvious  items  such  as 


28 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  I.     Restrictions   Pertaining  to  the  Type  and  Use  of  Structures* 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Business 
or  Trade 
Prohibited 

Type  of 
Improvement 

Height 

of 
Build- 
ings 

Approval  of 

Building 

Plans 

Cost 

of 
Build- 
ings 

Outbuildings 

Nuisances 
Pro- 
hibited 

Except  on 
specified  lots 

Single  family  res- 
idence except  on 
specified  lots 

Required  for 
bldgs.  and  altera- 
tion by  seller 

Private  garage 
or  greenhouse 
only 

Baker  Estates 
Altoona,  Pa. 

signs 

Ardmore 

J.  R.  Robertson  &  Co. 
Chicago,  111. 

Residences  only 
except  on  speci- 
fied lots 

$5,000 
mini- 
mum 

Garages  must  be 
within  10  ft.  of 
rear  of  house 

Arlington  Park 

Laudermilk  Realty  Co. 
Chicago,  111. 

Diff.  on 
diff.  lots 

Single  family  res- 
idences only 

Sp<  ci- 
fied  on 
certain 
lots. 

Correspond  to 
house  in  style. 
35  ft.  from  lot 
lines 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

above 
ground 

Yes 

Single  family 
residence  only 

2  sto- 
ries, 
base- 
ment 

$3,000 
mini- 
mum 

Anchorage,  Ky. 

Yes 

One  dwelling  per 
lot;  only  2  story 
apartment 

Required  by 
seller  for  bldgs. 
and  alterations 

Garages  only 

Fowl 

G.  R.  Morris  Org'n. 
Baltimore,  Md. 

Andrews  Subdivision 

New  Britain,  Conn. 

Yes 

Single  family  and 
2  flat  residences 

2  sto- 
ries, 
base- 
ment, 
attic 

$3,000 
single 
$5,000 
double 

livestock 

Avon  Center  Estates 

H.  F.  Bowse 
Cleveland,  Ohio 

Single  family 
residences  only 

$3,000 
mini- 
mum 

Garage  min.  $200 
corresp.  to  house 
and  built  after 

Amusement 
places,  liquor 

Aspinwall  Hill  Subd'n 

Brookline,  Mass. 

Yes 

Dwellings 

$6,000 

min- 

mum 

Belmont  Country  Club 

A.  T.  Mc  Intosh  Co. 
Chicago,  111. 

$5,000 
on  cer- 
tain lots 

Single  family 
residences 

Required  by 
maintenance 
corporation 

2  garages  com- 
bined 

Ann  Arbor,  Mich. 

livestock 

Yes 

Single  family 
residences  to 
1950 

Required  by 
seller  for  bldgs. 
and  alterations 

Speci- 
fied for 
each  lot 

Private  garage 
only;  erected 
after  house 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

signs 

Beacon  Falls,  Conn. 

Yes 

Single  family 
residences 

Single  family 
residences 

$5,000 
mini- 
mum 

Boston,  Mass. 

Bonnycastle  Terrace 

Louisville,  Ky. 

Yes 

Single  family 
residences  only 

Livestock 
quarrying, 
saloon 

Single  family 
residences  only; 
18  exceptions 

Required  by 
seller  until 
1944 

Diff.  on 

diff. 

lots 

Private  appurte- 
nant   only;    cor- 
respond to  house 

Fuel  tank 

Thorpe  Bros. 
Minneapolis,  Minn. 

above 
ground 

Brookline  Hills  Subd'n 

Brookline,  Mass. 

Yes 

Single  family 
residences 

3  sto- 
ries 

$4,000 

Cuyahoga  View  Heights 

Hoiles  &  Hedden  Co. 
Cuyahoga  Falls,  Ohio 

Except  on 
specified  lots 

Single  family 
residences  only; 
except  on  some 
lots 

2  hi  sto- 
ries 
maxi- 
mum 

Required  by 
seller  for  build- 
ings and  altera- 
tions for  15  yrs. 

Diff. 

on  dilT. 
lots 

One  private  ga- 
rage correspond- 
ing to  house 

Oil  well 

Colony  Hills 

Approved 
business  al- 
lowed 

Single  family 
residences 

Required  by 
trustees 

Private  garage 

Special  list 

Springfield,  Mass. 

♦Another  interesting  restriction  is  that  which  requires  the  buyer  to  build  on  the  lot  within  a  certain  time  after  purchase  (see 
p.  33).  Such  a  provision  is  found  in  the  deeds  of  the  following  subdivisions:  Ardmore,  1  year  on  specified  lots;  Cushing's  Island, 
2  years;  Lake  Wauconda,  1  year;  Newton  Blvd.  Sub'n.,  2  years;  Sackett  Sub'n.,  5  years;  Sudbrook,  5  years. 


RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT 


29 


Table  I.    Restrictions  Pertaining  to  the  Type  and  Use  of  Structures  {Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Business 
or  Trade 
Prohibited 

Type  of 
Improvement 

Height 

of 
Build- 
ings 

Approval  of 

Building 

Plans 

Cost 

of 
Build- 
ings 

Outbuildings 

Nuisances 
Pro- 
hibited 

Business 
prohibited 
for  10  yrs. 

$3,000 

Private  garage 
only 

Mfr. 

Baltimore,  Md. 

livestock 

Cravath  Subdivision 

Locust  Valley,  L.  I. 

Yes 

Single  family 
residences 

Appurtenant  to 
country  estate 

$2,000 

Casco  Bay,  Me. 

Amusements 

Yes 

Single  family 
residence;  one 
per  lot 

Required  by 
seller 

Hogle  &  Mawdsley 
Carmel,  Cal. 

Devonshire  Manor  Annex 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

Manufac- 
turing pro- 
hibited 

Apartments  and 
business  on  spe- 
cified lots 

Required  by 
seller;  brick, 
stone  or  tile 

Garages  may  not 
be  used  for  resi- 
dence 

Livestock, 
asylum,  etc. 

Business  al- 
lowed on 
certain  lots 

Diff.  on  diff.  lots 

Diff.  for 

diff. 
bldgs. 

Required  by 
seller  to  1940; 
brick,  tile  or 
stone  required 

$8,000 
for  sin- 
gle res. 

Garages  may  not 
be  used  for  resi- 
dences to  1950 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

asylum,  etc. 
to  1950 

Single  family 
residences  on  all 
but  specified  lots 

$5,000 
single 
res. 

S.  S.  Berry 
Chicago,  111. 

Prohibited 

Single  family 
residence  to 
1950 

Required  by 
seller  for  bldgs. 
and  alterations 

Diff.  for 

diff. 

lots 

Priv.  garage  and 
appurtenant 
bldgs.  Not  for  res. 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

hospital, 
etc. 

Business  on 
specified  lots 

Single  family 
residences  except 
on  specified  lots 

$6,000 
for  res- 
idences 

Garage  to  be 
built  only  in 
conjunction 
with  res. 

Chas.  P.  Gray 
Chicago,  111. 

Single  family 
residences 

story 
min. 

Required  by 
seller  for  bldgs. 
and  alterations 

Diff.  for 
diff.  lots 

Correspond  to 
residence 

Thorpe  Bros. 
Minneapolis,  Minn. 

fuel     tank 

above 

ground 

Forest  Hills  Gardens 

Sage  Foundation  Homes 
Long  Island 

Private  res. 
for  not  more 
than  2  families 

Required  by 
seller  for  bldgs. 
and  alterations 

Diff.  for 
diff.  lots 

Private  garage 

Slaughter 

house, 

livestock 

Business  on 
specified  lots 

Single  family 
residences 

story 
min. 

Required  by 
seller  for  bldgs. 
and  alterations 

Diff.  for 
diff.  lots 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

asylum, 
factory 

Freeman  Subdivision 

Providence,  R.  I. 

Yes 

Single  family 
residences 

Garage  connected 
with  house  rec- 
ommended 

Single  family 
residences  to 
1935 

Private  garage 
appurtenant 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Great  Neck  Hills 

Great  Neck,  L.  I. 

Yes 

Single  family 
residences 

Required  by 
seller 

$3,500 

to 
$5,500 

Must  conform 
to  residence 

Livestock 

Glen  Oaks 

Single  family 
residences  only 

Required  by 
Homes  Assn. 

$5,000 
mini- 
mum 

Garage  may  not 
be  erected  before 
house 

Guy  M.  Rush 
Los  Angeles,  Cal. 

oil  drilling 

Guilford 

Private  dwell- 
ings 

Required  by 
seller 

Diff.  for 
diff.  lots 

Garage 

Baltimore  County,  Md. 

list 

Prohibited 
except  on 
specified  lots 

One  single  fam- 
ily residence  per 
lot 

Required  by 
seller  for  bldgs. 
and  alterations 

$3,000 

Private  appurte- 
nant; not  to  be 
used  as  res. 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Harroun  Park  Subdivision .  .  . 
Currier  Inv.  Co. 
Detroit,  Mich. 

Business  on 
specified  lots 

Single  family 
residences  on 
certain  streets 

$3,500 

to 
$4,500 

Private  appurte- 
nant; erected 
after  house 

Liquor 

Mfr. 

Signs 

Highland  Park  Addition 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

Single  family 
residences  only 

Required  by 
seller  to  i960  for 
bldgs.  and  alter- 
ations 

$10,000 

Garage  may  not 
be  used  as  resi- 
dence 

3o  DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 

Table  I.   Restrictions  Pertaining  to  the  Type  and  Use  of  Structures  (Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Business 
or  Trade 
Prohibited 

Type  of 
Improvement 

Height 

of 
Build- 
ings 

Approval  of 

Building 

Plans 

Cost 

of 
Build- 
ings 

Outbuildings 

Nuisances 
Pro- 
hibited 

Howard-Lincoln,  etc.,  Add'n. 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Business  on 
specified  lots 

Apartments  on 
specified  lots 

Required  by 
seller;  brick, 
stone  or  tile 

Garage  may  not 
be  used  as  resi- 
dence 

Livestock, 

hospital, 

etc. 

Hunting  Ridge 

Geo.  R.  Morris  Org'n. 
Baltimore,  Md. 

Yes 

One  dwelling  per 
lot;  only  2  story 
apartments 

Required  by 
seller  for  bldgs. 
and  apartments 

Fowl,  hos- 
pital, etc. 

Single  family 
residence  only 

2  story 
mini- 
mum 

Required  by 
seller 

Diff.  on 
diff.  lots 

Bills  Realty  Co. 
Chicago,  111. 

Kenilworth  Hghlds.  Subd'n... 
Wittbold  Realty  Co. 
Chicago,  111. 

Mfr. 

Livestock 

Billboards 

A.  H.  Kraus  Co 

Diff. on 
diff.  lots 

In  connection 
with  residence 

Signs 

Chicago,  111. 

Dwellings 

30  ft. 
from 
ground 

Required  by 
seller 

$1,500 

to 
$1,000 

Liquor 

Perry  Park,  Colo. 

$8,500 

to 
$10,000 

B.  H.  Laudermilk  Co. 
Chicago,  111. 

Oakland,  Cal. 

Single  family 
residence 

Required  by 
seller 

$3,000 

to 
$5,000 

Special  list 

One  single  fam- 
ily residence  per 
lot 

$3,000 
mini- 
mum 

Private  green- 
house and  ga- 
rage 

Livestock 

Blair  Homes  Co. 
Altoona,  Pa. 

billboards 

Single  family 
residence 

2  sto- 
ries, at- 
tic, cel- 
lar 

$5,000 
mini- 
mum 

Saloon, 

Seattle,  Wash. 

Factory 
Hospital 

Maple  Hill   . . 

Single  family 
residence 

Required  by 

seller 

Diff.  for 
diff.  lots 

Private  garage 

Liquor, 

F.  B.  McKibbin  Co. 
Lansing,  Mich. 

Livestock 

Yes 

Single  family 
residence 

$7,500 

Conform  to 
house 

No  quarry 

Spokane,  Wash. 

Business 
prohibited 

Single  family 
residence — one 
per  lot 

Diff.  for 
diff.  lots 

3  ft.  from  rear 
line 

Billboards 

Little  Rock,  Ark. 

Milwaukee-Howard,  Subd'n.. 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Yes,  except 
on  specified 
lots 

Apartments  on 
specified  lots 

Required  by 
seller;  brick, 
stone  or  tile 

Garage  may  not 
be  used  for  resi- 
dence 

Hospital, 
Livestock 

Yes 

Single  family 
residence 

Required  by 
seller 

Lake  Wales,  Florida 

Morningside  Heights 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Single  family 
residence 

Private  appur- 
tenant 

Newton  Blvd.  Subd'n 

Newton,  Mass. 

Yes 

Single  family 
residence 

3  sto- 
ries 

$5,000 

Livestock 

Oak  Hill  Village .  . 

Yes 

Single  family 
residence 

Required  by 
seller 

$12,500 
mini- 
mum 

Private  appurte- 
nant 

Signs 

Arnold  Hartman 
Boston,  Mass. 

Yes 

Single  family 
residence 

3  sto- 
ries 
max. 

Required  by 
seller 

Private  appurte- 
nant 

F.  W.  Norris  Co. 
Boston,  Mass. 

Pacific  Southwest  Bank 

Los  Angeles,  Cal. 

Business  on 
specified  lots 

Diff.  on  diff.  lots 

Diff.  for 

diff. 

uses 

Liquor, 
Signs 

Palos  Verdes  Estates 

Los  Angeles,  Cal. 

Business  on 
specified  lots 

Single  family 
residence 

Required  by  Art 
Jury  &  Homes 
Assn. 

Diff.  for 

diff. 

lots 

Signs, 
Factories, 
Oil  drills 

Yes 

Single  family 
residence 

Required  by 
seller 

$10,000 
mini- 
mum 

Usually  at- 
tached; private 
appurtenant 

Jemison  &  Co. 
Birmingham,  Ala. 

RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT 


3i 


Table  I.   Restrictions  Pertaining  to  the  Type  and  Use  of  Structures  {Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Business 
or  Trade 
Prohibited 

Type  of 
Improvement 

Height 

of 
Build- 
ings 

Approval  of 

Building 

Plans 

Cost 

of 
Build- 
ings 

Outbuildings 

Nuisances 
Pro- 
hibited 

Roland  Park    

Business 
prohibited 

Dwellings 

Diff.  for 
diff.  lots 

Livestock 

Baltimore  County,  Md. 

Yes 

Private  dwelling 
house 

2  sto- 
ries 
max. 

Required  by 
Homes  Ass'n 

$4,000 
mini- 
mum 

Private  appurte- 
nant; not  built 
before  house 

Liquor 

Mason-McDuffie  Co. 
San  Francisco,  Cal. 

Livestock, 
Factory 

Louisville,  Ky. 

Yes 

One  dwelling 
house  per  lot;  no 
apt.  or  duplex 

Required  by 
seller  to  1935 

Diff.  for 
diff.  lots 

Garage  appur- 
tenant 

Saloon, 

New  York  City 

Factory 

Yes 

Single  family 
residence 

3  sto- 
ries 

$3,000 

Livestock 

Baltimore  County,  Md. 

One  single  fam- 
ily residence  per 
lot 

2  sto- 
ries 
min. 

Required  by 
seller 

Private  garage; 
conforming  to 
house 

Van  Sweringen  Co. 
Cleveland,  Ohio 

Yes 

$500 

to 
$2,000 

Calgary,  Alberta 

S.  Bloomfield  Highlands 

Michigan  Inv.  Co. 
Detroit,  Mich. 

Single  family 
residence 

Related 
to  foun- 
dation 

Required  by 
seller;  brick  or 
stone  material 

Private  appur- 
tenant 

Single  family 
residence 

Diff.  for 
diff.  lots 

Private  garage 
appurtenant 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Sunnymede 

Whitcomb  &  Keller 
S.  Bend,  Ind. 

Required  by 
seller  for  bldg. 
and  alterations 

Garage  not  to  be 
erected  before 
house 

Livestock 

Sunnyside 

City  Housing  Corp. 
New  York  City 

Yes 

Single  family 
residence 

$6,500 

Livestock, 

N.  Andover,  Mass. 

Signs 

Tilden  Realty  Corp 

Utica,  N.  Y. 

Single  family 
residence 

$14,000 

$10,000 

$5,000 

Garage 

Sunset  Hill   

Single  family 
residence 

Stated  in  individ- 
ual deeds  or  con- 
tracts 

Diff.  for 
diff.  lots 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Yes 

Dwellings 

2  sto- 
ries 

$5,000 

Saloon, 

Victoria,  B.  C. 

Livestock, 
Signs 

Yes 

Single  family 
residence 

$7.5oo 

Garage;  conser- 
vatory 

Wellesley,  Mass. 

Signs 

Valencia  Park 

Bowie  &  Trent 
San  Benito,  Tex. 

Yes,  except 
on  specified 
lots 

Single  family 
residence 

$3,500 

to 
$5,000 

Private  appurte- 
nant; may  not 
be  used  for  res. 

Single  family 
residence 

2  sto- 
ries 

$10,000 
$15,000 
$20,000 

Scarborough,  N. Y. 

Vinsetta  Park  Subd'n 

Vinsetta  Land  Co. 
Detroit,  Mich. 

Business  on 
specified  lots 

One  dwelling; 
not  more  than 
2  apts. 

Required  by 
seller 

Diff. on 

diff. 

streets 

Los  Angeles,  Cal. 

Single  family 
residences  except 
on  specified  lots 

Diff.  for 

diff. 

uses 

Livestock 

Business  on 
specified  lots 

Use  classification 
of  lots 

Required  by 
seller 

Speci- 
fied for 
each  lot 

Garages  only  on 
residence  lots 

Mfr. 

Woodmar  Realty  Co. 
Hammond,  Ind. 

Liquor 
Billboards 

Business  on 
specified  lots 

Single  family 
residences;  apts. 
on  certain  lots 

No  frame  con- 
struction al- 
lowed 

$5,000 

Private  appur- 
tenant 

William  Zelosky 
Chicago,  111. 

Westwood  Subdivision 

Van  Alstine  Land  Co. 
Detroit,  Mich. 

Business  on 
specified  lots 

Diff.  on  diff.  lots 

Diff.  for 

diff. 

uses 

Private  appur- 
tenant; erected 
after  house 

32 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


the  keeping  of  chickens,  the  erection  of 
billboards,  fuel  tanks  above  ground,  etc., 
as  well  as  other  items  not  so  obviously 
detrimental  to  residence  use.  Manu- 
facturing, as  a  prohibited  use,  is  fre- 
quently found  among  the  list  of  nuis- 
ances, along  with  hospitals,  asylums  and 
other  institutional  uses.  An  examination 
of  the  lists  shows  that  they  reflect  local 
prejudices  quite  definitely.  An  example 
is  to  be  found  in  the  restrictions  on 
properties  in  northeastern  Ohio,  where  a 
prohibition  against  gas  and  oil  drilling 
is  found,  as  a  result  of  a  drilling  fever 
which  swept  that  section  about  15  years 
ago  and  peppered  it  with  unsightly  der- 
ricks. It  is  with  a  view  to  meeting  local 
situations  such  as  this  that  lists  of 
nuisances  should  be  compiled  in  order 
to  be  most  effective. 

If  the  subdivision  is  to  be  purely 
residential,  a  blanket  restriction  is  fre- 
quently drawn,  prohibiting  the  use  of 
any  structure  for  purposes  of  business 
or  trade.  Two  or  three  typical  restric- 
tions of  this  character  may  be  cited: 

"The  party  of  the  second  part  shall  not  at 
any  time  conduct  or  permit  to  be  conducted 
upon  said  premises  any  trade  or  business."2 

"No  building  erected  or  placed  thereon 
shall  be  used  for  any  business,  trade,  manu- 
facturing, mercantile  or  mechanical  pur- 
poses    .     .     ."3 

"This  property  shall  be  used  for  residence 
purposes  only  and  not  for  any  purpose 
of  business  or  trade."4 

However,  a  subdivision  may  be  de- 
signed primarily  for  residential  purposes 
and  still  include  a  limited  number  of 
business  sites.  At  this  point  the  de- 
veloper exercises  his  zoning  power  by 
determining  how  much  business  area 
he  will  set  aside  and  also  where  it  shall  be 
located.  A  common  method  of  describ- 
ing   both    amount    and    location    is    by 

2  Deven  Heights,  Hogle  &  Mawdsley,  Carmel,  Cal. 

3  Oak  Hill  Village,  Arnold  Hartman,  Boston,  Mass. 

4  Redmont  Park,  Jemison  &  Co.,  Birmingham,  Ala. 


reference  to  the  recorded  plat  of  the 
subdivision  or,  in  cases  where  no  such 
recording  has  taken  place,  by  reference 
to  street  frontage.  Examples  of  each  of 
these  methods  follow. 

".  .  .  nor  shall  any  of  said  property 
.  .  .  be  used  for  any  purpose  other  than 
residence  purposes,  except  that  Lots  Nos. 
245  to  253,  inclusive,  as  shown  on  said  Map 
may  be  devoted  to  the  purposes  and  uses 
specified  and  permitted  for  the  Class  5  busi- 
ness district  provided  and  established  by 
Ordinance  227     .     .     ."a 

"It  is  mutually  agreed  that  for  a  period  of 
twenty  (20)  years  from  date  hereof,  that  lots 
facing  on  Palatine  (Central)  Road  may  be 
used   for   business   purposes,     .     .     ."6 

Next  comes  the  question  of  residential 
uses  and  whether  or  not  other  than 
single-family  residences  shall  be  per- 
mitted. In  subdivisions  which  include 
both  single-  and  multi-family  houses  the 
procedure,  so  far  as  the  restrictions  are 
concerned,  is  similar  to  that  used  in 
designating  business  uses  and  business 
location.  The  deed  will  refer  to  the 
recorded  plat  or  specify  certain  streets 
for  the  location  of  multi-family  units. 
When  a  variety  of  uses  is  allowed,  sub- 
dividers  are  usually  quite  careful  in  their 
terminology,  specifying  apartment  use, 
two-family,  or  three-family  buildings. 
The  mere  fact  of  having  to  distinguish 
between  two  or  more  types  of  use  makes 
clear-cut  terminology  necessary. 

But  when  it  is  desired  to  set  aside  an 
area  for  single-family  residences  a  wide 
variety  of  terms  is  used,  frequently  re- 
sulting in  difficulties.  The  term  "dwel- 
ling," for  example,  is  often  used  but  it 
may  be  construed  to  mean  a  single 
building  which  may  house  more  than  one 
family  quite  as  easily  as  to  mean  a  single- 
family  residence  which  was  probably 
the  subdivider's  intention.  Likewise  the 
terms  "family  residence"  and  "residen- 


6  Fernside,  Fred  T.  Wood  Co.,  Oakland,  Cal. 

6  Fairview  Addition,  Chas.  P.  Gray  Co.,  Chicago,  111. 


RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT 


33 


tial  purposes"  are  liable  to  misconstruc- 
tion. It  therefore  behooves  the  sub- 
divider  to  take  great  pains  in  phrasing 
the  clause  which  designates  certain  lots 
for  single-family  residence  use.  A  par- 
ticularly good  statement  of  this  restric- 
tion is  found  in  covenants  for  the 
Armour  Hills  property  of  the  J.  C. 
Nichols  Investment  Co.  of  Kansas  City: 

"None  of  said  lots  may  be  improved,  used 
or  occupied  for  other  than  private  residence 
purposes,  and  no  flat  nor  apartment  house, 
though  intended  for  residence  purposes  may 
be  erected  thereon.  Any  residence  erected  or 
maintained  thereon  shall  be  designed  for 
occupancy  by  a  single  family." 

Such  a  statement  as  this  is  sometimes 
further  strengthened  by  an  addition  to 
the  effect  that  only  one  such  residence 
shall  be  placed  on  a  lot.7 

Finally,  consideration  of  the  type  and 
use  of  structures  must  include  the  regu- 
lations with  respect  to  outbuildings: 
What  kinds  shall  be  permitted,  to  what 
uses  may  they  be  put,  by  whom  may  they 
be  used  and  when  shall  they  be  built? 
Although  occasional  mention  is  made  of 
greenhouses,  garages  are  the  most  im- 
portant form  of  outbuildings  and  most 
restrictions  are  concerned  with  their 
regulation.  Most  of  the  restrictions  state 
that  private  garages,  for  use  only  by 
occupants  of  the  house,  may  be  built, 
with  occasional  reference  to  capacity, 
as  two-  or  three-car  garages.  Some  re- 
strictions state  that  the  garage  shall  con- 
form to  the  type  of  architecture  of  the 
house  and  shall  be  attached  to  the  house 
or  located  on  the  lot  with  special  refer- 
ence to  the  house  or  building  lines.  An- 
other very  important  group  of  regula- 
tions consists  of  those  which  stipulate 
when  the  garage  shall  be  built  or  for 
what  it  shall  be  used.     An  increasingly 

7  "Only  one  single  family  residence  shall  be  erected 
on  each  individual  lot."  (Locust  Hills,  Blair  Homes  Co., 
Altoona,  Pa.) 


common  restriction  states  that  the  ga- 
rage shall  not  be  built  before  the  house 
and /or  that  the  garage  shall  not  be  used 
for  residential  purposes. 

"No  accessory  building  or  outhouse  of  any 
kind  shall  be  erected  and  maintained  on  any 
lot  prior  to  the  erection  of  the  main  residence 
thereon."8 

"No  garage,  barn  or  other  outbuilding, 
erected  on  said  lot,  shall  at  any  time  be  used 
for  residential  purposes."9 

Restrictions  of  this  type  have  grown  up 
to  meet  a  situation  of  fairly  recent  origin 
in  which  lot  purchasers  have  bought  the 
land,  erected  a  garage  and  used  it  for 
a  residence  while  accumulating  funds  for 
the  construction  of  the  house.  The  chief 
difficulty  which  may  arise  as  a  result  of 
failure  to  include  such  a  restriction  as 
this  is  the  construction  of  buildings  of 
this  type  before  the  completion  of  im- 
provements. Prevention  of  such  con- 
tingencies is  obviously  desirable.  From 
the  point  of  view  of  selling  the  balance 
of  the  lots  in  a  subdivision  the  erection 
of  garage-residences  is  a  distinct  handi- 
cap in  the  development  of  a  high-class 
subdivision.  On  the  other  hand,  in 
a  subdivision  designed  for  lower  income 
groups  permission  to  erect  such  struc- 
tures may  be  an  aid  in  disposing  of  re- 
maining lots.  In  such  instances  the 
number  of  prospective  purchasers  will 
be  increased  because  they  will  not  have 
to  wait  to  acquire  funds  for  both  house 
and  lot  before  purchasing. 

After  planning  for  the  types  of  struc- 
tures and  the  uses  to  which  they  may  be 
put,  the  developer  proceeds  to  regulate 
the  construction  of  these  buildings.  An 
occasional  restriction  stipulates  that 
building  shall  be  started  within  a  speci- 
fied time  after  the  purchase  of  the  land. 
The  purpose  of  this  restriction  is  obvi- 


8  Glen  Oaks,  Guy  M.  Rush,  Los  Angeles,  Cal. 

9  Milwaukee-Howard-Harlem-Subdivision,   Krenn  & 
Dato,  Chicago,  111. 


34 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


ously  to  insure  improvement  of  the  area 
within  a  relatively  short  time.  This 
would,  of  course,  redound  to  the  benefit 
of  the  subdivider,  for  it  is  easier  to  sell 
the  remaining  lots  in  a  subdivision  when 
construction  and  utilization  are  under 
way.  Only  one  such  restriction  is  found 
among  the  55  subdivisions  which  are  the 
most  recent  developments  and  of  the 
five  such  restrictions  in  the  29  Olmsted 
subdivisions  none  are  found  later  than 
1 91 7.  Furthermore,  the  one  recent  sub- 
division does  not  make  a  blanket  restric- 
tion requiring  construction  to  take  place 
within  a  certain  time  on  all  lots.  In- 
stead this  subdivider  has  reserved  cer- 
tain lots  which  may  be  sold  only  to 
purchasers  who  agree  to  build  within 
one  year.10  An  examination  of  the  plat 
reveals  that  the  lots  so  reserved  are 
scattered  over  the  subdivision,  their  loca- 
tions being  determined  probably  by  the 
fact  that  buildings  erected  on  these  sites 
would  be  strategic  from  the  point  of 
view  of  inducing  further  building.  It 
would  be  interesting  to  know  whether 
any  concessions  were  made  in  the  prices 
of  these  lots  to  compensate  for  the  addi- 
tional restriction.  This  restriction  is  an 
attempt  on  the  part  of  the  subdivider  to 
have  lot  purchasers  share  with  him  the 
responsibility  of  pioneering  in  the  new 
development.  But  the  general  attitude 
of  regarding  this  as  a  responsibility 
primarily  of  the  subdivider  may  explain 
in  part  the  very  few  instances  of  this 
type  of  control. 

The  inference  to  be  derived  from  the 
disappearance  of  this  restriction  is  that  it 
retarded  too  much  the  sale  of  lots.  The 
question  might  be  raised  as  to  whether 
greater  use  of  this  device  might  not  be 
desirable  to  curb  the  speculative  char- 
acter of  land  sales.  The  insertion  of  a 
time  limit  for  building  indicates  sale  for 


I0Arclmore,  John  R.  Robertson  &  Co.,  Chicago,  111. 


use  and  not  for  speculation.  It  protects 
the  lot  purchaser  who  wishes  to  build 
promptly  from  a  long  period  of  pioneer- 
ing. In  other  words,  the  man  who  builds 
as  soon  as  the  subdivision  is  opened  often 
has  to  wait  several  years  before  enough 
other  structures  are  built  in  the  area  to 
give  him  any  of  the  advantages  of  a  com- 
munity development.  The  time  limit  on 
building  would  benefit  the  consumers  of 
this  class.  The  immediateness  of  im- 
provement has  long  been  the  stock 
argument  of  the  subdivision  salesman. 
Such  a  restriction  writes  this  statement 
of  the  salesman  into  the  contract.  It 
thus  becomes  binding  upon  all  the  lot 
purchasers  who  thus  secure  for  them- 
selves the  advantages  derived  from 
prompt  building. 

By  far  the  most  important  restriction 
upon  construction  is  that  which  requires 
the  approval  of  building  plans.  A  state- 
ment in  a  report  by  Olmsted  Brothers 
sums  up  the  case  for  the  approval  of 
building  plans. 

"Of  all  the  restrictions  that  have  been 
devised  to  regulate  or  limit  the  uses  of  land 
for  the  purpose  of  maintaining  high  average 
values  in  a  community,  one  of  the  most  im- 
portant, certainly  the  most  broadly  inclusive, 
and  when  skillfully  employed  the  most 
effective,  is  a  reservation  to  the  vendor  de- 
velopment company,  or  to  some  other  agency 
acting  for  the  common  benefit  of  all  property 
owners,  of  the  power  to  veto  the  execution 
of  plans  for  improvements  which  in  the 
opinion  of  that  agency  would  detrimentally 
affect  the  attractiveness  and  consequent  land 
values  of  the  neighborhood  for  the  general  pur- 
poses which  may  have  been  chosen  as  ap- 
pealing most  strongly  to  the  market  to  which 
the  development  is  intended  to  cater."11 

The  importance  of  the  restriction  is 
further  attested  by  the  fact  that  39,  or 
almost  half,  of  the  84  deeds  analyzed 
contain  such  clauses.  It  should  be  noted, 
however,  that  this  high  percentage  may 

11  "Restrictions  for  Residential  Subdivisions,"  p.  3 
(I925)- 


RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT 


35 


be  the  result  in  large  part  of  the  nature 
of  the  sources  from  which  these  restric- 
tions were  collected.  Further  examina- 
tion of  the  facts  reveals  an  interesting 
trend.  Thirty-two  of  the  55  more  recent 
deeds  contain  a  requirement  for  ap- 
proval of  building  plans,  whereas  only 
seven  of  the  29  in  the  Olmsted  group 
contain  such  clauses,  all  of  which  are 
dated  since  1908.  In  other  words,  in  so 
far  as  any  generalization  may  be  made 
from  so  small  a  sample,  it  may  be  said 
that  this  device  is  comparatively  new 
and  that  its  use  is  increasing. 

The  best  of  these  restrictions  are  quite 
inclusive.  They  cover  approval  not  only 
of  the  original  structures  but  also  of 
alterations  thereto.  A  typical  clause  runs 
as  follows: 

"No  building,  fence,  wall  or  other  struc- 
ture shall  be  commenced,  erected  or  main- 
tained, nor  shall  any  addition  to  or  change  or 
alteration  therein  be  made,  until  the  plans 
and  specifications,  showing  the  nature,  kind, 
shape,  height,  materials,  floor  plans,  color 
scheme,  location  and  approximate  cost  of 
such  structure  and  the  grading  of  the  plot 
to  be  built  upon  shall  have  been  submitted  to 
and  approved  by  Whitcomb  and  Keller,  and 
a  copy  thereof,  as  finally  approved,  lodged 
permanently  with  Whitcomb  and  Keller. 
Whitcomb  and  Keller  shall  have  the  right 
to  refuse  to  approve  any  such  plans  or 
specifications  or  grading  plan,  which  are  not 
suitable  or  desirable,  in  its  opinion,  for  aes- 
thetic or  other  reasons;  and  in  so  passing 
upon  such  plans,  specifications  and  grading 
plans,  it  shall  have  the  right  to  take  into 
consideration  the  suitability  of  the  proposed 
building  or  other  structure,  and  of  the  ma- 
terials of  which  it  is  to  be  built,  to  the  site 
upon  which  it  is  proposed  to  erect  the  same, 
the  harmony  thereof  with  the  surroundings 
and  the  effect  of  the  building  or  other  struc- 
ture as  planned,  on  the  outlook  from  the 
adjacent  or  neighboring  property.  A  land- 
scape development  plan  shall  be  submitted 
to  and  approved  by  Whitcomb  and  Keller  be- 
fore any  landscaping  is  actually  executed."12 

Harmonious   development   is   obviously 

12Sunnymede,  Whitcomb  &  Keller,  South  Bend,  Ind. 


promoted  if  these  powers  are  carefully 
administered. 

From  the  point  of  view  of  the  pur- 
chaser two  considerations  should  be 
noted.  There  is  valuable  sales  psychol- 
ogy in  this  restriction.  Each  individual 
purchaser  is  prone  to  feel  that  his  own 
taste  in  residence  design  is  quite  un- 
impeachable, but  he  is  not  so  sure  about 
his  neighbor.  The  existence  of  this 
restriction  assures  him  that  his  neighbor 
will  not  erect  an  architectural  atrocity 
which  will  lessen  the  amenities  of  his 
own    improvement. 

The  second  concern  of  the  purchaser 
is  a  corollary  of  this.  It  has  to  do  with 
the  purchaser's  confidence  in  the  sub- 
divider  with  respect  to  performing  the 
duties  placed  upon  him  by  this  restric- 
tion. The  success  of  this  restriction  is 
dependent  upon  the  performance  of  the 
subdivider  or  of  the  agent  whom  he  has 
charged  with  the  administration  of  this 
covenant.  If  high  standards  are  main- 
tained in  the  early  improvements,  the 
sale  of  the  last  lots  will  be  materially 
aided.  If,  on  the  other  hand,  the  restric- 
tion is  loosely  administered,  it  will 
destroy  confidence  in  the  subdivider  and 
although  his  immediate  sales  may  be 
speeded  up  by  the  lowering  of  the  stand- 
ards, he  will  lose  the  clientele  to  which 
he  was  appealing  originally. 

An  important  consideration  in  con- 
nection with  this  restriction  is  the  agency 
for  administering  it.  If  there  is  con- 
fidence in  the  subdivider  then  adminis- 
tration by  him  is  the  easiest  way  to 
handle  the  problem.  However,  his 
interest  is  apt  to  lag  as  the  lots  are  sold 
out  and  in  order  to  get  out  more  quickly, 
he  may  be  tempted  to  lower  his  stand- 
ards toward  the  end. 

Administration  by  an  association  of 
the  lot  owners  also  presents  difficulties. 
Although  this  may  be  a  sales  asset,  it  is 
difficult  to  handle,  particularly  in   the 


36 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


early  stages  of  the  development.  On  the 
other  hand,  if  such  an  association  is  not 
formed  until  the  lots  are  nearly  disposed 
of,  the  subdivider  may  again  let  down 
the  bars  before  withdrawing  in  favor  of 
the  owners'  association. 

The  third  alternative  for  administer- 
ing this  restriction  is  by  an  Art  Jury. 
The  chief  problem  is  to  secure  an  ade- 
quate personnel  for  such  a  body  and 
this  is  especially  difficult  when  the  sub- 
division is  not  near  a  large  city. 

Another  administrative  problem  has 
to  do  with  the  cost  involved  in  approv- 
ing plans.  The  approval  of  a  large  num- 
ber of  building  plans  involves  consider- 
able outlay.  Olmsted  Brothers  in  their 
report  have  suggested  that  a  fee  be 
charged  for  such  approval.  This  would 
be  particularly  useful  when  the  sub- 
divider's  interest  begins  to  decline  and 
he  cannot  be  expected  to  bear  the 
financial  burden  involved.  It  is  also  a 
desirable  expedient  if  the  administration 
is  in  the  hands  of  an  owners'  associa- 
tion, for  such  an  organization  has  no 
funds  out  of  which  to  meet  such  expenses. 

This  matter  of  approval  of  building 
plans  is  being  approached  from  a  different 
angle.  The  development  of  architec- 
tural control  as  it  has  been  worked  out 
on  the  Palos  Verdes  Estates  in  Cali- 
fornia is  the  outstanding  example.  Since 
the  broad  outlines  of  this  method  were 
traced  in  Chapter  II,  the  additional 
discussion  here  is  intended  only  to  show 
the  wide  scope  of  this  control.  The 
purpose  is  not  to  require  the  use  of  a 
particular  style  of  architecture  but 
rather  to  encourage  the  development  of 
a  style  suited  to  California  conditions. 
In  order  to  secure  harmony  within  a 
given  district  the  height  of  the  roof  has 
been  the  determining  factor.  In  other 
words,  three  different  residence  districts 
are  described  in  terms  of  high  roof, 
medium  roof,  or  low  roof.    This  consti- 


tutes rather  a  far-reaching  measure  of 
control  but  it  seems  to  be  successful. 

Although  no  court  cases  have  arisen 
to  test  this  control,  certain  decisions  are 
considered  to  pave  the  way  for  a  favor- 
able verdict.  Proponents  of  archi- 
tectural control  base  their  confidence  in 
its  legality  largely  on  the  fact  that 
restrictions  requiring  approval  of  build- 
ing plans  have  been  sustained  in  some 
courts.  A  leading  Maryland  case  is 
usually  quoted  on  this  point: 

"The  second  part  of  the  by-law  provides 
that  the  design  of  the  building  shall  be  ap- 
proved by  the  directors.  The  object  of  this 
provision  .  .  .  was  to  secure  the  erec- 
tion of  a  better  class  of  buildings  with  at- 
tractive surroundings,  and  to  prevent  the 
erection  of  inferior  buildings  that  might 
diminish  the  value  of  the  property  and  affect 
its  eligibility  for  building  purposes.  It  was 
intended  not  only  for  the  benefit  of  the  lessor 
and  the  company,  but  for  the  common  ad- 
vantage and  protection  of  all  persons  coming 
in  or  taking  title  under  the  company  . 
And  in  addition  to  this  we  may  add,  that  it 
is  perfectly  competent  for  the  company  in 
selling  or  leasing  the  property,  to  provide  in 
the  lease  or  conveyance  or  by  agreement,  for 
the  erection  of  buildings  according  to  a 
certain  designated  plan  or  design 
So  the  only  objection  that  the  defendant  can 
fairly  make  to  the  title  offered  by  the  com- 
pany is  the  restriction  which  requires  the 
design  of  the  building  to  be  erected  by  him  to 
be  submitted  for  the  approval  of  the  direc- 
tors .  .  .  The  general  rule  deducible 
from  the  authorities  seems  to  be  that  where 
the  intention  of  the  parties  is  clear,  and  the 
restrictions  within  reasonable  bounds,  they 
will  be  upheld.  In  our  opinion  the  covenant 
involved  in  this  case  meets  these  tests."13 

Other  more  recent  decisions14  likewise 
uphold  the  validity  of  restrictions  re- 
quiring approval  of  building  plans.  It 
remains  for  actual  experience  to  prove 
whether     a     defense     based     on     these 


13  Peabody  Heights  Co.  v.  ll'illson,  82  Md.  186  at  202, 
203  and  204  (1895). 

14  Harmon  v.  Burow,  262  Pa.  188  (1919);  Jones  0. 
Northwest  Real  Estate  Co.,  149  Md.  271,  131  AtL  446 
(1925)- 


RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT 


37 


grounds  will  result  in  judicial  approval 
of  architectural  control  as  it  has  been 
developed  in  California. 

A  comparison  of  the  two  forms  of 
control — the  approval  of  building  plans 
and  architectural  control — raises  sev- 
eral interesting  questions.  The  approval 
of  building  plans  is  open  to  the  danger  of 
arbitrary  administration,  for  it  gives 
very  wide  powers  to  the  enforcing 
agency.  On  the  other  hand,  if  carefully 
administered,  it  offers  an  opportunity 
for  a  greater  variety  of  building  construc- 
tion while  retaining  a  harmonious  and 
pleasing  general  effect.  Architectural 
control  would  seem  to  afford  somewhat 
less  elasticity  in  design.  But  from  the 
point  of  view  of  the  powers  conferred  it 
appears  less  drastic,  in  that  it  requires 
the  establishment  and  publication  of 
certain  standards  of  construction  which 
may  be  definitely  known  by  the  prospec- 
tive purchaser  of  a  lot. 

Economically  either  method  of  control 
must  be  tested  in  the  light  of  its  effect 
upon  land  values.  The  problem  in  draft- 
ing such  restrictions  is  to  strike  the 
proper  balance  between  control  which 
will  stabilize  values  and  control  which 
will  constitute  an  interference  with,  and 
thus  an  impairment  of,  values. 

Two  other  restrictions  sometimes  ap- 
plied to  the  construction  of  residences 
deserve  attention.  One  is  a  stipulation 
as  to  the  height  of  the  building;  some- 
times expressed  in  feet,  sometimes  in  the 
number  of  stories.  The  need  for  this 
restriction  may  be  questioned  in  cases 
where  the  approval  of  building  plans  is 
required.  But  it  is  not  uncommon  to 
find  both  types  of  restrictions  in  the 
same  deed. 

The  other  restriction  to  be  con- 
sidered is  that  which  stipulates  the 
minimum  cost  of  the  buildings  to  be 
erected  on  the  subdivision.  Two  meth- 
ods are  employed  in  applying  this  re- 


striction; a  blanket  minimum  may  be  set 
for  all  residences  to  be  built  in  the  subdi- 
vision or  a  schedule  may  be  prepared  set- 
ting forth  specific  minimum  costs  for  each 
lot  or  block  of  lots.  Of  these  two  methods 
the  second  is  clearly  the  better,  for  there 
are  but  few  subdivisions  in  which  all  lots 
warrant  equal  treatment  as  to  the  im- 
provements to  be  erected  on  them.  The 
value  of  a  restriction  in  terms  of  mini- 
mum cost  may  be  questioned.  The  main 
argument  in  its  favor  is  that  such  a 
restriction  may  be  valuable  from  the 
point  of  view  of  advertising  and  sales 
psychology.  This  will  depend  upon  the 
local  market  conditions.  On  the  other 
side,  proponents  of  a  minimum  cost  of 
building  clause  must  answer  the  ques- 
tion: Is  this  an  effective  device  for  en- 
forcing the  developer's  plan?  In  the 
first  place,  it  is  very  difficult  to  deter- 
mine the  actual  value  of  a  structure  in 
dollars.  Furthermore,  such  a  restriction 
does  not  insure  an  attractive  or  har- 
monious improvement.  A  lot  purchaser 
may  comply  with  or  even  exceed  the 
minimum  cost  set  by  the  agreement  and 
yet  his  residence  may  be  a  positive  blot 
on  the  subdivision.  Another  obstacle  to 
the  usefulness  of  this  stipulation  is  the 
changing  value  of  the  dollar,  which  may 
make  a  $5,000  minimum,  for  example, 
totally  inadequate  to  provide  a  desirable 
improvement  in  harmony  with  the  plan 
for  the  development.  In  a  subdivision 
which  is  quickly  sold  out  and  built  up  a 
stipulation  as  to  the  cost  of  improvement 
may  be  workable  but  it  is  of  doubtful 
value  in  a  slow  development.  Finally, 
this  restriction  is  of  minor  significance 
when  approval  of  building  plans  is  re- 
quired. 

Restrictions  on   Use  of  the  Lot  Area 

When  deeds  contain  only  a  very 
limited  number  of  restrictive  clauses, 
setback    provisions    are    almost   invari- 


38 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


ably  among  the  regulations  included. 
Building  lines  are  by  far  the  most  im- 
portant of  the  restrictions  pertaining  to 
the  use  of  the  lot  area.  Probably  they 
are  likewise  the  most  difficult  to  draft. 
There  are  two  principal  ways  of  estab- 
lishing these  lines.  One  is  by  drafting 
or  writing  them  in  the  plat  of  the  sub- 
division which  is  filed  in  the  office  of  the 
county  recorder.  The  other  is  to  insert 
them  in  the  deeds  conveying  the  prop- 
erty. The  former  procedure  needs  no 
proof  to  show  that  such  restrictions  are 
part  of  a  general  scheme  for  the  develop- 
ment of  the  area.  They  are  enforceable 
by  and  against  all  grantees  of  the  subdi- 
vide^ and  are  binding  upon  subsequent 
purchasers  with  notice,  even  though 
they  are  not  mentioned  in  the  convey- 
ances. 

It  is  somewhat  more  difficult,  how- 
ever, to  show  beyond  question  of  a  doubt 
that  building  lines  established  by  re- 
strictive clauses  in  deeds  are  in  pursu- 
ance of  a  general  scheme.  Special  care 
must  therefore  be  exercised  in  framing 
these  agreements  to  prove  that  their 
purpose  is  to  promote  a  balanced  plan 
for  the  entire  development.  But  in  spite 
of  this  possible  difficulty  the  method  of 
establishing  building  lines  by  clauses  in 
the  instruments  conveying  the  property 
seems  preferable.  It  permits  more  careful 
definition,  particularly  in  subdivisions 
where  the  developer  has  taken  pains  to 
work  out  his  general  scheme  in  terms  of 
the  requirements  for  each  lot.  When 
such  building  line  clauses  are  part  of  a 
general  scheme,  they  may  be  enforced  by 
all  grantees  of  the  subdivides15 

The  two  main  elements  in  building 
lines  are  the  front  building  line  and  the 
side  building  line.  The  front  line  is  im- 
portant, of  course,  because  of  its  relation 
to  the  general  appearance  of  the  sub- 
division.    The  side  building  line,  while 

16  Van  Sant  v.  Rose,  260  111.  401  (1913). 


also  contributing  to  the  amenities  of  the 
layout,  is  more  important  from  the  point 
of  view  of  securing  adequate  light  and 
air  for  the  individual  lot  owners.  The 
differences  in  purpose  of  the  two  types 
are  reflected  in  the  terminology  which  is 
sometimes  used  to  describe  them.  The 
front  building  line  is  frequently  referred 
to  as  the  setback  line  while  the  side 
building  lines  are  often  treated  under  the 
heading  of  "free  spaces."  The  front 
building  line  should  be  platted  with  ref- 
erence to  topography  and  particularly  to 
street  plan,  for  setback  restrictions  on  lots 
fronting  on  a  major  thoroughfare  may 
well  be  greater  than  on  lots  fronting  on 
minor  streets.  The  side  building  lines  are 
determined  largely  by  the  lot  width, 
which  in  turn  is  determined  by  land  val- 
ues and  general  character  of  the  devel- 
opment. Their  main  purpose  is  to  pre- 
vent building  too  far  to  one  side  of  the  lot 
or  too  close  to  the  adjoining  residences. 

Another  classification  of  building  line 
restrictions  may  be  made  with  reference 
to  their  inclusiveness  or  the  care  with 
which  they  are  drawn.  Three  groups 
may  be  distinguished.  The  first  is  com- 
posed of  blanket  restrictions  which 
establish  a  single  building  line  for  all  lots. 
The  second  group  consists  of  restrictive 
clauses  which  designate  front  and  side 
building  lines  with  occasional  reference 
to  projections.  The  third  classification 
includes  those  restrictions  which  estab- 
lish building  lines  for  each  lot  separately. 

An  example  of  restrictions  of  the  first 
class  is  one  which  establishes  a  "20-foot 
building  line  on  all  residential  lots."16 
Such  a  procedure  suggests  several  diffi- 
culties. In  the  first  place,  it  ignores 
completely  any  topographical  irregulari- 
ties. Furthermore,  it  makes  no  provi- 
sion for  questions  which  will  inevitably 
arise,  such  as:  May  the  lower  step  rest 


16  Arlington  Park,  B.  H.  Laudermilk  Realty  Associa- 
tion, Chicago,  Illinois. 


RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT  39 

Table  II.     Restrictions  Pertaining  to  the  Use  of  the  Lot  Area* 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Building  Lines 

Projections 

Lot 
Frontage 

Percent,  of 
Lot  Area 
Covered 

Further 
Subdi- 
vision 

Public 
Areas 

Ease- 
ments 

Baker  Estates 
Altoona,  Pa. 

Recorded  on  plat 

5  ft.  beyond  bldg. 
line  for  enclosed 
porch 

80%  lot 
width 

Prohibited 

5  ft.  rear 
3  ft.  side 

25  ft.  on  all  lots 

J.  R.  Robertson  &  Co. 
Chicago,  111. 

Arlington  Park 

Laudermilk  Realty  Co. 
Chicago,  111. 

20  ft.  on  all  resi- 
dence lots 

Recorded  on  plat 

Diff.  amts.  for  diff. 
types  of  projec- 
tions 

45  ft.  min. 
on  spec, 
sts. 

80%  lot 
width 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Anchorage  Heights 

Anchorage,  Ky. 

Main  walls  10  ft. 
from  side  and  rear 
lines.    100  ft.  from 
street 

Diff.  amts.  for  diff. 
types  of  projec- 
tions 

Pro- 
hibited 

Title  re- 
served by 
seller 

Ashburton 

G.  R.  Morris  Org'n 
Baltimore,  Md. 

50  ft.  min- 
imum 

Only  with 
consent 
of  seller 

5  ft.  side 

New  Britain,  Conn. 

or  rear 

Avon  Center  Estates 

H.  F.  Bowse 
Cleveland,  Ohio 

30  ft.  front,  3-8  ft. 
side  depending  on 
drive 

Aspinwall  Hill  Sub'n 

Brookline,  Mass. 

Title  re- 
served by 
seller 

Belmont  Country  Club 

A.  T.  Mc  Intosh  Co. 
Chicago,  111. 

35  ft.  building  line 
on  all  but  specified 
lots 

On  record 

Barton  Hills 

Ann  Arbor,  Mich. 

Main  walls  25  ft. 
from  street.     10  ft.- 
20  ft.  from  side  and 
rear 

Title  re- 
served 
by  seller 

Specified  for  each 
lot 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Main  walls  15  ft. 
from  streets 

Beacon  Falls,  Conn. 

25-50  ft.  from 
street  line  depend- 
ing on  depth 

Boston,  Mass. 

Louisville,  Ky. 

Main  walls  100  ft. 
from  street.    10  ft. 
from  side  and  rear 
line 

Diff.  amts.  for  diff. 
types  of  projections 

Prohib- 
ited 

Brown  Section 

Minneapolis,  Minn. 
Thorpe  Bros. 

Main  walls  40  ft. 
from  front  lot  line 
and  5  ft.  from  side 
line 

Diff.  for  diff.  types 
of  projections 

60%  to- 
tal; 80% 
width 

Riparian 
rights  re- 
served 

Brookline  Hills  Sub'n 

Brookline,  Mass. 

20,  10  ft.  from 
front  St.;  5  ft.  from 
side  and  rear  lines 

Blanket  permission 
for  projections 

Reserva- 
tion of 
title  by 
seller 

Cuyahoga  View  Heights 

Hoiles  &  Hedden  Co. 
Cuyahoga  Falls,  Ohio 

Specified  in  each 
deed 

Projectipns  require 
approval  of  builder 

Prohib- 
ited 

5  ft.  rear 

Colony  Hills 

Special  schedule. 
10  ft.  from  rear 
line 

Diff.  amts.  for  diff. 
types  of  projections 

30  ft.  min- 
imum free 
space 

Title  re- 
seved  by 
seller 

Springfield,  Mass. 

Set-back  30  ft. 
from  street  line 

Projections  may  go 
8  ft.  beyond  build- 
ing line 

40  ft.  min- 
imum 

Baltimore,  Md. 

*An   additional   restriction   specifying   a    minimum  lot  area  is  found  in  the  deeds  of  two  subdivisions:     Sudbrook,  1  house  per 
acre;  Sunrise  Addition,  4,000  sq.  ft. 


4o  DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 

Table  II.     Restrictions  Pertaining  to  the  Use  of  the  Lot  Area  (Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Building   Lines 

Projections 

Lot 

Frontage 

Percent,  of 
Lot  Area 
Covered 

Further 
Subdi- 
vision 

Public 
Areas 

Ease- 
ments 

Cravath  Sub'n 

Locust  Valley,  L.  I. 

20  ft.  from  side 
and  front  streets 

Offer  to 

neighbor 

before 

selling 

Seller  re- 
serves ti- 
tle to 
marsh 

Casco  Bay,  Me. 

Prohib- 
ited for 
25  yrs. 

Hogle  &  Mawdsley 
Carmel,  Cal. 

Devonshire  Manor  Annex. . .  . 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Set-back  15  ft. 
from  street 

No  projection 
within  15  ft.  of 
street 

Of  record 

Set-back  12  ft. 
from  street 

No  projection 
within  12  ft.  of 
street 

Seller  will 
improve 
and  main- 
tain to 
1930 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

S.  S.  Berry 
Chicago,  111. 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Set-back  27  ft. 
from  street 

No  projections 
within  27  ft.  of 

street 

Chas.  P.  Gray  Co. 
Chicago,  III. 

Main  walls  35  ft. 
from  front  line  and 
5  ft.  from  side  line 

Projections  not 
more  than  12  ft. 
beyond  main  wall 

60%  total 

80% 

width 

Thorpe  Bros. 
Minneapolis,  Minn. 

Forest  Hills  Gardens 

Sage  Foundation  Homes 
Long  Island 

Main  walls  25  ft. 
from  front  street 
and  12 J^  ft.  from 
side 

Diff.  amts.  for  diff. 
types  of  projections 

On  map. 
3  ft.  rear 

Private  garage  only 

Diff.  for  diff.  lots 

40  ft. 
minimum 

On  map 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

20-12  ft.  for  main 
walls 

Providence,  R.  I. 

Main  front  walls 
20  ft.  from  lot  line 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Great  Neck  Hills 

20-25  ft.  main 
walls  from  street 

12  ft.  from  side 

street 

Reserved 
by  seller 

Great  Neck,  L.  I. 

Glen  Oaks 

Diff.  for  diff.  lots 

Guy  M.  Rush 
Los  Angeles,  Cal. 

3  ft.  side 

Guilford .  . 

Special  schedule 

Diff.  for  diff.  types 
of  projections 

Reserved 
by  seller 

5  ft.  rear 

Baltimore  County,  Md. 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Harroun  Park  Sub'n 

Currier  Inv.  Co. 
Detroit,  Mich. 

20-25  ft.  set-back 
from  front  lot  line 

Projections  may  go 
beyond  building 
line 

Highland  Park  Addition 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

Of  record 

Howard-Lincoln  etc.  Add'n  . . 
Krenn  &  Dato,  Inc. 
Chicago,  III. 

15  ft.  set-back 
from  street 

15  ft.  set-back  for 
projections 

Of  record 

Hunting  Ridge 

Geo.  R.  Morris  Org'n 
Baltimore,  Md. 

Bldg.  10  ft.  and 
garage  3  ft.  from 
party  line 

50  ft. 
minimum 

50  ft.  set-back  for 
main  walls 

50  ft.  set-back  for 
projections 

Bills  Realty  Co. 
Chicago,  111. 

Of  record 

RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT 


4i 


Table  II.     Restrictions  Pertaining  to  the  Use  of  the  Lot  Area  (Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Building  Lines 

Projections 

Lot 
Frontage 

Percent,  of 
Lot  Area 
Covered 

Further 
Subdi- 
vision 

Public 
Areas 

Ease- 
ments 

Kenilworth  Hghlds.  Sub'n .  .  . 
Wittbold  Realty  Co. 
Chicago,  111. 

A.  H.  Kraus  Co 

Of  record;  diff.  for 
diff.  lots 

Porches,  etc.  may 
project  beyond 
bldg.  line 

Chicago,  111. 

Lake  Wauconda 

Perry  Park,  Colo. 

Main  wall  30  ft. 
from  front  street, 
5  ft.  from  side  st. 

Title  re- 
served by 
seller 

Laudermilk  Villa 

B.  H.  Laudermilk  Co. 
Chicago,  111. 

30  ft.  on  all  lots 

Oakland,  Cal. 

Special  schedule 

Title  re- 
served by 
seller 

5  ft.  on 
certain 
lines 

Set-back  18  ft. 
from  street 

Porch  may  project 
beyond  18  ft. 

Prohib- 
ited 

On  plat 

Blair  Home  Co. 
Altoona,  Pa. 

Main  walls  40  ft. 
from  front  and 
side  streets 

Diff.  amts.  for  diff. 
types  of  projections 

Title  re- 
served by 
seller 

Seattle,  Wash. 

Maple  Hill 

F.  B.  McKibben  Co. 
Lansing,  Mich. 

Set-back  25  ft. 
from  front  and  6 
ft.  from  side  lot 
line 

Prohib- 
ited 

2  ft.  rear 
and  side 
lines 

Main  walls  35  ft. 
from  front  and  5 
ft.  from  side  lines 

Spokane,  Wash. 

Little  Rock,  Ark. 

Milwaukee-Howard  etc.  Sub'n 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

20  ft.  set-back 
from  street 

No  projections  be- 
yond 20  ft. 

Of  record 

Main  walls  10  ft. 
from  side  and  rear 
lines 

Title  re- 
served by 
seller 

5  ft. 

Lake  Wales,  Fla. 

north 
and  east 

Morningside  Heights 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Front  walls  25  ft. 
from  lot  line 

Newton  Blvd.  Sub'n 

Newton,  Mass. 

Main  walls  25  ft. 
from  front  and  5 
ft.  from  side  line 

Diff.  amts.  for  diff. 
types  of  projections 

Title  re- 
served by 
seller 

Oak  Hill  Village  .  . 

Main  walls  of 
house  25  ft.  from 
street  line 

Arnold  Hartman 
Boston,  Mass. 

Oyster  Harbor,  Inc 

F.  W.  Norris  Co. 
Boston,  Mass. 

Set-back  50  ft. 
from  street  and  20 
ft.  from  lot  line 

Pacific  Southwest  Bank 

Los  Angeles,  Cal. 

Set-back  15  ft. 
from  front  lot  line 

Steps  may  en- 
croach on  15  ft. 
set-back 

Palos  Verdes  Estates 

Los  Angeles,  Cal. 

Diff.  for  diff.  lots 

Diff.  for 
diff.  uses 

Prohib- 
ited 

Diff.  for  diff.  lots 

Jemison  &  Co. 
Birmingham,  Ala. 

at  rear 

Special  schedule 

Baltimore  County,  Md. 

Schedule  by  lots 

On  map 

Mason-MeDuffie  Co. 
San  Francisco,  Cal. 

Into  no 
more  than 

4  lots 

Louisville,  Ky. 

42 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  II.     Restrictions  Pertaining  to  the  Use  of  the  Lot  Area  {Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Building  Lines 

Projections 

Lot 
Frontage 

Percent,  of 
Lot  Area 
Covered 

Further 
Subdi- 
vision 

Public 
Areas 

Ease- 
ments 

Din*,  for  diff .  lots 

New  York  City 

Sudbrook 

Baltimore  County,  Md. 

Main  walls  40  ft. 
from  front  and  10 
ft.  from  side  st. 

May  project  5  ft. 
into  set-back  area 

Prohib- 
ited 

Title  re- 
served by 
seller 

Reserved 

Shaker  Heights 

Schedule  for  indi- 
vidual lots 

Prohib- 
ited with- 
out seller 

Van  Sweringen  Co. 
Cleveland,  Ohio 

Main  walls  20  or 
30  ft. 

Calgary,  Alberta 

S.  Bloomfield  Highlands 

Michigan  Inv.  Co. 
Detroit,  Mich. 

Set-back  50  ft. 
from  street  line 

Projections  may  go 
12  ft.  beyond 
building  line 

6  ft.  on 
rear  line 

20-25  ft.  set-back 
from  front  lot  line 

35%  in- 
side and 
45%  cor- 
ner lot 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Recorded  on  plat 

Diff.  amts.  for  diff. 
types  of  projections 

Prohib- 
ited with- 
out sell- 
er's con- 
sent 

Whitcomb  &  Keller 
So.  Bend,  Ind. 

City  Housing  Corp. 
New  York  City 

Main  walls  25  ft. 
from  front  and  10 
ft.  from  side  street 

Not  to 
violate  re- 
strictions 

N.  Andover,  Mass. 

Tilden  Realty  Corp. .  . 

Main  walls  50,  100 
and  20  ft.  from 
front  street 

To  speci- 
fied mini- 
mum 

Utica,  N.  Y. 

Sunset  Hill 

Building  lines  on 
plat 

Diff.  amts.  for  diff. 
types  of  projections 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Main  walls  60  ft. 
from  front  and 
side  streets 

Diff.  amts.  for  diff. 
types  of  projections 

Prohib- 
ited 

Title  re- 
served by 
seller 

Victoria,  B.  C. 

Main  walls  50-25 
ft.  from  front  and 
side  streets 

Prohib- 
ited 

Wellesley,  Mass. 

On  recorded  plat 

Bowie  &  Trent 
San  Benito,  Tex. 

Main  walls  40  or  60 
ft.  from  front  and 
side  streets 

Prohib- 
ited with- 
out sell- 
er's con- 
sent 

Title  re- 
served by 
seller 

Scarborough, N.  Y. 

Vinsetta  Park  Sub'n 

Vinsetta  Land  Co. 
Detroit,  Mich. 

Set-back  50  ft. 
from  front  lot  line; 
40  ft.  also 

Projections  may 
violate  set-back 

Prohib- 
ited 

4  ft.  in 
rear 

Wagner-Thoreson  Co 

Los  Angeles,  Cal. 

Set-back  50  ft. 
from  front  line 

Projections  may 
enter  50  ft.  set- 
back 

60  ft.  min- 
imum 

Woodmar  Realty  Co. 
Hammond,  Ind. 

Set-back  15  ft. 
from  front  line 

Projections  may 
not  violate  set- 
back 

William  Zelosky 
Chicago,  111. 

Set-back  25  ft. 
from  front  and  5  ft. 
from  side  lot  line 

Projections  may 
encroach  on  set- 
back 

Reserved 

Van  Alstine  Land  Co. 
Detroit,  Mich. 

by  seller 

RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT 


43 


on  the  building  line  or  may  the  steps 
encroach  on  the  setback  area;  if  a 
covered  porch  must  be  entirely  behind 
the  building  line,  must  an  open  porch 
observe  the  same  rule?  In  other  words, 
a  building  line  must  be  defined  not  only 
in  terms  of  distance  from  the  lot  line 
but  also  in  terms  of  the  portion  of  the 
building  affected  by  this  line.  Still  an- 
other objection  to  this  type  of  restrictive 
clause  is  that  it  makes  no  mention  of 
side  lines.  No  requirements  are  set  with 
respect  to  location  of  the  residence  in 
relation  to  the  houses  on  either  side. 
In  short,  a  building  line  restriction  such 
as  the  one  cited  here  is  of  but  little  value 
from  the  point  of  view  of  securing  a 
balanced  plan  for  the  development.  It 
marks  one  extreme  in  the  variety  of 
clauses  drawn  to  establish  building  lines. 
Restrictions  in  the  second  classifica- 
tion are  much  more  adequate  for  the 
purposes  for  which  they  are  designed. 
Two  examples  in  this  class  may  be  cited: 

"All  lots  (excepting  those  fronting  on  Van 
Alstine  and  J.  W.  Daly  Avenues  and  Maple 
Avenue  west  of  J.  W.  Daly  Avenue)  shall 
be  used  for  residence  purposes  only  and  no 
building  shall  be  erected  or  placed  within  25 
feet  from  the  front  lot  line,  and  at  least  5 
feet  from  the  side  lot  lines.  (Porches,  steps 
and  windows,  however,  shall  not  be  con- 
strued as  a  part  of  the  building)."17 

"No  building  shall  be  erected,  placed  or 
suffered  to  remain  on  any  lot,  the  front  of 
said  building  being  less  than  thirty  (30)  feet 
from  the  inside  sidewalk  line  of  the  street 
upon  which  said  lot  faces,  nor  shall  any 
building  or  porch  be  nearer  to  the  drive  side 
of  any  lot  than  eight  (8)  feet  and  nearer  to 
the  other  side  than  three  (3)  feet.  On  lots 
facing  on  Avon  Center  or  Armour  Roads, 
however,  no  building  shall  be  erected,  placed 
or  suffered  to  remain  thereon,  the  front 
thereof  being  nearer  than  forty  (40)  feet  to 
the  inside  line  of  the  sidewalk  of  the  street 
upon  which  said  lot  faces,  but  in  all  other 
respects  said  lots  facing  on  said  Roads  shall 
be  governed  by  the  same  terms  and  condi- 

17  Westwood  Subdivision,  Van  Alstine  Land  Com- 
pany, Detroit,  Michigan. 


tions  as  any  and  all  other  Sub  Lots  in  said 
Subdivision.  No  open  porch  shall  extend 
further  than  ten  (10)  feet  from  the  building 
upon  any  lot."18 

Other  restrictions  in  this  group  define 
somewhat  further  the  building  lines  for 
projections.  Some  clauses  stipulate  the 
number  of  feet  which  oriels,  bays, 
porches  (open  or  closed),  steps,  ter- 
races, chimneys,  etc.,  may  encroach  upon 
the  setback  area.  In  such  cases  the 
clause  usually  reads  to  the  effect  that 
the  main  walls  of  the  building  shall  be 
set  back  a  definite  number  of  feet  from 
the  lot  line  and  that  projections  may 
protrude  a  specified  number  of  feet 
beyond  these  walls. 

The  third  group  of  building  line  re- 
strictions is  doubtless  possible  only  on 
the  high-grade  subdivisions,  for  their 
planning  involves  considerable  expense. 
To  determine  them  accurately  requires 
a  careful  survey  and  a  study  of  the 
peculiarities  of  each  lot.  It  is  not  feasible 
to  reproduce  here  a  restrictive  clause 
of  this  kind  on  account  of  its  length  and 
the  fact  that  the  data  are  not  readily 
understandable  without  reference  to  a 
plat  of  subdivision.  Suffice  to  say,  this 
type  of  building  restriction  represents 
the  acme  of  caution  in  safeguarding  the 
developer's  plan. 

Building  line  regulations  also  fre- 
quently contain  requirements  as  to  the 
location  of  garages  and  other  outbuild- 
ings. Distance  from  the  residence,  from 
the  rear  line,  from  the  side  street  are 
the  most  common  forms  of  regulation 
used  in  these  cases. 

Closely  related  to  this  matter  of  build- 
ing lines  is  regulation  of  the  frontage  of 
residences  on  particular  streets.  Such 
regulation  is  especially  important  with 
reference  to  corner  lots.  Carefully 
drawn  instruments,  such  as  those  of  the 


18  Avon   Center   Estates,  H.    F.   Bowse,   Cleveland, 
Ohio. 


44 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


J.  C.  Nichols  Investment  Company  of 
Kansas  City,  state  which  way  the  resi- 
dences on  separate  lots  or  blocks  of  lots 
shall  face. 

Finally,  the  easements  and  rights  of 
way  that  are  reserved  are  an  important 
restriction  on  the  use  of  the  lot  area.  A 
rather  common  practice  with  reference 
to  these  is  merely  to  refer  in  the  deed  to 
the  recorded  map  on  which  easements 
and  rights  of  way  are  platted,  as  for 
instance 

"Such  easements  and  rights  of  way  are 
located  on  said  Map  entitled  "Fernside"  and 
except  where  otherwise  indicated  thereon  or 
specified  in  conveyances,  shall  be  confined  to 
the  rear  five  feet  of  all  lots  shown  thereon."19 

These  reservations  are  usually  made 
only  on  the  rear  of  the  lot,  although  in 
some  subdivisions  both  side  and  rear 
areas  are  reserved. 

"Rear  and  side  lot  lines  to  the  distance  of 
i  feet,  together  with  overhang  for  pole  arms, 
are  subject  to  an  easement  for  necessary 
electric  wire  or  telephone  poles  or  for  any 
utility,  and  ingress  and  egress  is  expressly 
reserved  to  workmen  employed  thereon."20 

A  good  deal  may  be  said  in  favor  of 
considerable  elasticity  in  the  administra- 
tion of  building  line  restrictions.  If 
discretionary  powers  are  vested  in  the 
subdivider  or  his  agent,  he  may  make  an 
exception  here  and  there  where  it  seems 
necessary,  securing  compensation  by  a 
more  stringent  restriction  applied  else- 
where on  the  same  lot.  Elasticity  in 
administering  this  restriction  should  not 
be  exercised  to  favor  a  certain  lot  holder. 
It  is  merely  a  matter  of  weighing  leni- 
ency on  one  point  against  more  strict 
construction  on  another  in  the  interest 
of  a  better  balanced  development.  When 
this   power   is   coupled   with    power   to 


approve  building  plans,  it  may  result 
in  a  more  attractive  layout  than  could 
have  been  secured  by  a  uniform  or 
definite  prescription  applied  to  a  larger 
area. 

The  only  other  restriction  which  has 
to  do  with  the  actual  use  of  the  lot  area 
is  the  one  which  stipulates  the  percent- 
age of  the  lot  area  that  may  be  covered 
by  the  improvement.  Certain  restric- 
tions state  flatly  that  "no  dwelling  shall 
occupy  more  than  2S%  of  an  inside  lot  or 
45%  of  a  corner  lot"21  but  a  more  com- 
mon form  couples  percentage  of  lot  area 
with  percentage  of  lot  width  to  be 
covered.22  One  of  the  main  benefits  of 
such  a  restriction  is  to  prevent  the  erec- 
tion of  various  outbuildings  on  the  rear 
of  the  lot.  It  is  therefore  especially  use- 
ful when  applied  to  deep  lots.  The  few 
instances  (six)  of  this  type  of  regulation 
would  seem  to  indicate  that  its  im- 
portance is  declining,  probably  as  a 
result  of  the  growing  importance  of  the 
restriction  requiring  approval  of  build- 
ing plans  and  definite  stipulations  as  to 
the  number  and  kind  of  outbuildings. 
The  submission  of  building  plans  to  the 
subdivider  or  other  agency  in  charge  of 
administering  that  restriction  affords 
opportunity  for  insuring  ample  free 
spaces. 

Restrictions  with  respect  to  the  size  of 
the  lot  in  terms  of  minimum  lot  frontage 
or  minimum  lot  area  were  found  in  but 
very  few  of  the  deeds  examined.  The 
reason  is  probably  that  such  items  are 
taken  care  of  on  the  recorded  plat  of 
the  subdivision.  However,  a  statement 
as  to  the  minimum  lot  frontage  allowed 
was  found  in  seven  instances  in  the  deeds 


19  Fernside,    Fred    T.    Wood    Company,    Oakland, 
California. 

20  Maple  Hill,  Frank  B.  McKibbin  Company,  Lan- 
sing, Michigan. 


21  Sunrise  Addition,  R.  C.  Erskine  &  Co.,  Seattle, 
Wash. 

22  "No  residence,  with  attached  garages,  attached 
greenhouses  and  porches  shall  occupy  to  exceed  6o% 
of  the  area  of  this  lot,  nor  shall  have  a  width  greater 
than  8o%  of  the  width  of  the  lot  .  .  ."  (Brown 
Section,  Thorpe  Bros.,  Minneapolis,  Minn.). 


RESTRICTIONS  ON  PHYSICAL  DEVELOPMENT  45 

examined  in  this  study.  Its  main  useful-  pertaining  to  the  physical  development 
ness  would  seem  to  be  in  preventing  the  of  the  area  has  to  do  with  regulations 
subdivision  of  original  lots  into  smaller  regarding  the  public  areas.  In  general, 
parcels.  Whether  or  not  this  is  the  pur-  these  restrictions  are  not  very  specific, 
pose  of  such  clauses  is  not  revealed  by  In  a  large  number  of  the  Olmsted  deeds 
the  deeds,  which  contain  for  the  most  a  restriction  is  found  which  states  that 
part  flat  statements  to  the  effect  that  the  seller  reserves  title  to  the  public 
"no  lot  shall  have  a  frontage  of  less  than  areas  but  no  indication  is  given  as  to 
fifty  feet."23  If  the  prevention  of  sub-  what  these  public  areas  include.  Like- 
division  is  its  purpose,  this  restriction  wise,  in  the  other  group  of  deeds  no 
seems  rather  a  left-handed  measure  of  specific  mention  is  made  with  reference 
control.  to  public  areas,  although  their  existence 

The  requirement  of  a  minimum  lot  is  evidenced  by  the  presence  of  mainte- 
area  is  even  more  infrequently  found,  nance  charges  which  cover  the  expenses 
only  one  subdivision24  having  a  stipula-  involved  in  the  upkeep  of  these  areas  as 
tion  to  this  effect.  The  value  of  this  re-  well  as  other  items  which  are  best 
striction  may  be  impaired  unless  it  is  handled  as  community  rather  than  as 
coupled  with  a  requirement  for  minimum  individual  services.  One  developer 
lot  frontage.  In  order  to  secure  the  neces-  specifically  reserves  riparian  rights  and 
sary  square  footage  the  depth  may  be  another  retains  title  to  a  piece  of  marsh 
extended  at  the  expense  of  the  width,  land.  Whether  or  not  the  shores  of  the 
The  presence  of  such  a  regulation  may  lake  or  the  marsh  are  to  be  developed 
be  explained  in  some  instances  by  the  for  public  use  is  not  stated.  An  oc- 
existence  of  a  state  law  or  a  municipal  casional  developer  reserves  title  to  the 
zoning  ordinance,  which  specifies  such  a  streets,  granting  the  lot  owners  ease- 
minimum,  ments  of  ingress  and  egress  over  those 

Much  more  important  are  the  restric-  streets.  Such  instances  are  the  exception 

tions    aimed    directly    at    further    sub-  rather  than  the  rule.     By  far  the  most 

division  of  the  lots.      These  are  more  common  practice  is  the  dedication  of  the 

numerous  among  the  examples  studied,  streets   to   the  public.      The  process  is 

Many  of  these  clauses  merely  make  a  very   simple,   for  if  a  developer  paves 

flat  statement  to  the  effect  that  further  his  streets,  lays  sidewalks  and  sells  the 

subdivision  of  the  original  lots  is  pro-  adjoining  lots  without  reserving  title  to 

hibited    but   others   include   permission  the  streets,  the  city  regards  this  as  an 

to  divide  the  lot  and  to  merge  the  sec-  offer  of  dedication  which  it  may  accept 

tions  thus   created    with    the    adjoining  merely  by  performing  such  functions  as 

lots,  thus  laying  sewers   or  erecting  street  lights. 

".     .     .     no  lot  shall  be  subdivided  for  the  The  whole  procedure  is  frequently  reg- 

purpose  of  erecting  a  complete  residence  on  ulated    by    a    statute    which     "usually 

either  portion;  provided,  however,  that  a  lot  provides    that    the    recording    and    ac- 

may   be  subdivided  when   the  portions  so  knowledgment  Gf  the  Subdivision    Plat 

created  are  added  to  the  adioinine  lots  on  ,     „  r 

either  side."25  shall    operate    as    a    conveyance    in    fee 

simple  and  with  warranty  of  all  streets 

_TheJmal  division  under  restrictions  anj  a//eys  and  other  portions  laid  out  for 

23Ashburton  Homes,  Geo.  R.  Morris  Organization,  public  USeS."26   (Italics  Ours.) 

Baltimore,  Md.  

24  Sunrise  Addition,  R.  C.  Erskine  &  Co.,  Seattle,  M  Locust  Hills,  Blair  Homes  Co.,  Altoona,  Pa. 

Wash.  26  MacChesney,  op.  cit.,  p.  601-2. 


CHAPTER  V 


Other  Clauses  Dealing  With  Duration,  Administration,  and  Racial 

Restrictions 


Restrictions  on  Alienation  and  Occupancy 

Restrictions  regulating  ownership  and 
occupancy  of  subdivision  property  are 
usually  directed  against  persons  not  of 
the  Caucasian  race.  Thus,  when  a  sub- 
divider  inserts  a  clause  in  the  convey- 
ance to  the  effect  that  the  lot  owner 
must  have  the  approval  of  the  seller 
before  alienating  or  renting  his  prop- 
erty, he  is  usually  seeking  to  prevent 
ownership  or  use  of  that  property  by 
other  than  white  persons.  So  before 
discussing  in  detail  what  are  commonly 
called  "racial  restrictions,"  it  may  be 
well  to  consider  briefly  the  legality  of 
restraints  on  alienation1  in  general. 

The  statement  has  been  made  that 
restrictions  of  a  general  character  against 
alienation  are  invalid,  whereas  a  restric- 
tion directed  against  a  limited  group 
will  generally  be  sustained.2  The  follow- 
ing quotation  expresses  a  similar  idea: 

"A  condition  may  be  imposed  in  a  deed  on 
the  power  of  alienation  in  certain  cases,  as 
that  the  land  shall  not  be  conveyed  before  a 
certain  date  or  to  a  certain  person  .  .  . 
But  an  absolute  restriction  on  the  power  of 
alienation     ...     is  void."3 

This  is  not  a  hard  and  fast  rule,  how- 
ever, for  state  laws  differ  and  state  courts 
differ  in  their  interpretation  of  these  laws. 
An  Illinois  court  held  that  a  restriction 
in  a  will  even  for  a  limited  period  is 
invalid,4   while    the   United    States   Su- 

1  Alienation  is  "the  transfer  of  the  property  and 
possession  of  lands,  tenements,  or  other  things,  from  one 
person  to  another."  (Bouvier's  Law  Dictionary, 
Rawle's  Revision,  1914,  article  on  "Alienation".) 

2  See  MacChesney,  op.  cit.,  p.  586. 

3  Devlin,  op.  cit.,  Vol.  2,  sec.  965,  p.  1791. 

4  "In  a  devise  of  land  in  fee  simple  a  condition  against 
all  alienation  is  void,  because  tepugnant  to  the  estate 


preme  Court  in  the  much  quoted  case  of 
Cowell  v.  Colorado  Springs  Co.  upheld 
the  right  of  an  individual  to  impose 
such  restriction  for  a  limited  time.  The 
opinion  reads  as  follows: 

".  .  .  the  owner  of  property  has  a 
right  to  dispose  of  it  with  a  limited  restriction 
on  its  use,  however  much  the  restriction  may 
affect  the  value  or  the  nature  of  the  estate. 
Repugnant  conditions  are  those  which  tend 
to  the  utter  subversion  of  the  estate,  such  as 
prohibit  entirely  the  alienation  or  use  of  the 
property.  Conditions  which  prohibit  its 
alienation  to  particular  persons  for  a  limited 
period,  or  its  subjection  to  particular  uses, 
are  not  subversive  of  the  estate:  they  do 
not  destroy  or  limit  its  alienable  or  inherit- 
able character."5 

The  divergence  of  opinion  which  is  re- 
vealed by  these  examples  is  further 
borne  out  in  the  interpretation  of  restric- 
tions applied  to  specific  racial  groups. 
In  deed  restrictions  a  general  restraint 
upon  alienation  usually  takes  the  form 
of  a  reservation  on  the  part  of  the  seller 
requiring  his  approval  before  the  prop- 
erty may  be  transferred.  In  the  instru- 
ments examined  only  very  few  instances 
of  this  type  of  restriction  were  found. 
Of  the  84  deeds  but  seven  contained  a 
clause  to  this  effect  and  two  of  these 
were  instruments  drawn  by  the  same 
subdivider.  The  Shaker  Heights  develop- 
ment in  Cleveland,  Ohio,  uses  this  de- 
vice, although  provision  is  made  for 
overruling  the  decision  of  the  seller  by 

conveyed  ...  A  restriction,  whether  by  way  of 
condition  or  of  devise  over  or  against  alienation,  al- 
though for  a  limited  time,  of  an  estate  in  fee  is  likewise 
void,  as  repugnant  to  the  estate  devised  to  the  first 
taker,  by  depriving  him,  during  that  time,  ot  the  in- 
herent power  of  alienation."  Jones  v.  Port  Huron 
Engine  Co.,  171  111.  502  at  507  (1898). 
6  100  U.S.  55  at  $7  (1879). 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


47 


the  lot  owners  affected.     The  warranty 
deed  contains  this  paragraph: 

"The  premises  hereby  conveyed  shall  not 
be  occupied,  leased,  rented,  conveyed  or 
otherwise  alienated,  nor  shall  the  title  or 
possession  thereof  pass  to  another  without  the 
written  consent  of  the  Grantor  except  that  the 
Grantor  shall  not  withhold  such  consent  if 
and  after  a  written  request  has  been  made  to 
the  Grantor  to  permit  such  occupation, 
leasing,  renting,  conveyance  or  alienation  by 
a  majority  of  the  owners  of  the  sublots  which 
adjoin  or  face  said  premises  upon  both  sides 
of  the  highway  or  highways,  upon  which  said 
premises  front  or  abut,  and  within  a  distance 
of  five  (5)  sublots  from  the  respective  bound- 
ary lines  of  the  said  premises,  except  transfer 
of  title  by  way  of  devise  or  inheritance,  in 
which  case  the  devisee  or  heir  shall  take  such 
property  subject  to  the  restrictions  herein 
imposed  and  except  that  said  property  may 
be  mortgaged  or  subjected  to  judicial  sale, 
provided,  in  any  such  case  that  no  purchaser 
of  said  premises  at  judicial  sale  shall  have  the 
right  to  occupy,  lease,  rent,  convey,  or  other- 
wise alienate  said  premises  without  the  writ- 
ten consent  of  the  Grantor  first  had  and  ob- 
tained in  the  manner  above  stated." 

Coming  now  to  racial  restrictions, 
the  first  question  usually  asked  is: 
Are  they  constitutional?  The  general 
impression  seems  to  be  that  an  attempt 
to  exclude  members  of  a  certain  race 
from  a  given  area  is  contrary  to  the  law 
of  the  land  or  constitutes  racial  dis- 
crimination. The  thirteenth  and  four- 
teenth amendments  to  the  Federal 
Constitution  are  usually  cited  in  this 
connection.  But  these  amendments 
refer  to  state  action  or  legislative 
measures  and  not  to  individual  action 
based  on  the  right  of  contract.  The 
principle  has  therefore  been  established 
that  legislation  cannot  segregate  racial 
groups  in  a  community.  An  outstanding 
case   is    that   of  Buchanan  v.    Warleyf 


Table  III.     Restrictions  on  Alienation 
and  Occupancy 


6  "We  think  this  attempt  to  prevent  alienation  of  the 

property  in  question   to  a  person  of  color  was    not  a 

legitimate  exercise  of  the  police  power  of  the  state 

and  is  in  direct  violation  of  the  fundamental  law  en- 

(Continued  on  page  i8) 


Restr 

ctions 

and  Subdivider 
and  Location 

On 

Alienation 

On 
Occupancy 

Africans, 

Mongolians 

prohibited 

Baker  Estates 
Altoona,  Pa. 

Mongolians 
prohibited 

Caucasians 
only 

J.  R.  Robertson  &  Co. 
Chicago,  111. 

Laudermilk  Realty  Co. 
Chicago,  111. 

Negroes 
barred 

Negroes 
barred 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Anchorage,  Ky. 

Seller  must 
approve 

Seller  must 
approve 

Baltimore,  Md. 

New  Britain,  Conn. 

H.  F.  Bowse 
Cleveland,  Ohio 

Brookline,  Mass. 

Caucasian 
only — Con- 
dition 

A.  T.  Mc  Intosh  Co. 
Chicago,  111. 

only — Con- 
dition 

Ann  Arbor,  Mich. 

Caucasians 
only 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

only 

Beacon  Falls,  Conn. 

Boston,  Mass. 

Louisville,  Ky. 

Brown  Section 

Thorpe  Bros. 
Minneapolis,  Minn. 

Caucasians 
only 

Caucasians 
only 

Brookline  Hills  Sub'n 

Brookline,  Mass. 

White  race 
only 

Hoiles  &  Hedden  Co. 
Cuyahoga  Falls,  Ohio 

only 

Colony  Hills 

Springfield,  Mass. 

Negroes 
barred 

Baltimore,  Md. 

barred 

Cravath  Sub'n 

Locust  Valley,  L.  I. 

Cushing's  Island 

Casco  Bay,  Me. 

Deven  Heights 

Hogle  &  Mawdsley 

Carmel,  Cal. 

Asiatics  and 

Negroes 

barred 

Asiatics  and 

Negroes 

barred 

Devonshire  Manor  Annex 

Krenn  &  Dato 
Chicago,  111. 

Caucasians 
only — Con- 
dition 

Caucasians 
only — Con- 
dition 

48 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  III.    Restrictions  on  Alienation 
and  Occupancy  {Continued) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Restr 

ictions 

On 
Alienation 

On 

Occupancy 

Caucasians 
only — Con- 
dition 

Krenn  &  Dato 
Chicago,  111. 

only — Con- 
dition 

S.  S.  Berry 
Chicago,  111. 

Estudillo  Estates 

Caucasians 
only 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

only 

Fairview  Addition 

Chas.  P.  Gray  Co. 
Chicago,  111. 

Caucasians 
only 

Thorpe  Bros. 
Minneapolis,  Minn. 

only 

Sage  Foundation  Homes 
Long  Island 

Africans, 

Mongolians 

barred 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

only 

Providence,  R.  I. 

Caucasians 
only 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

only 

Great  Neck  Hills 

Great  Neck,  L.  I. 

Glen  Oaks 

Caucasians 
only 

Guy  M.  Rush 
Los  Angeles,  Cal. 

only 

Guilford 

Baltimore  County,  Md. 

barred 

Caucasians 
only 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

only 

Caucasians 
only 

Currier  Inv.  Co. 
Detroit,  Mich. 

only 

Highland  Park  Addition 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

Caucasians 
only — Con- 
dition 

Caucasians 
only — Con- 
dition 

Howard-Lincoln  etc.  Add'n 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

Caucasians 
only — Con- 
dition 

Caucasians 
only — Con- 
dition 

Seller  shall 

approve 

assignee 

Seller  shall 

Geo.  R.  Morris  Org'n 
Baltimore,  Md. 

approve 
renter 

Caucasians 
only 

Bills  Realty  Co. 
Chicago,  III. 

only 

Kenilworth  Hghlds.  Sub'n 

Wittbold  Realty  Co. 
Chicago,  III. 

Caucasians 
only — Con- 
dition 

A.  H.  Kraus  Co 

Caucasians 
only — Con- 
dition 

Chicago,  111. 

only — Con- 
dition 

Perry  Park,  Colo. 

Laudermilk  Villa 

B.  H.  Laudermilk  Co. 
Chicago,  III. 

in  which  the  Supreme  Court  of  the 
United  States  declared  invalid  an  ordin- 
ance of  Louisville,  Kentucky,  designed 
to  prohibit  occupancy  by  a  colored  per- 
son of  a  house  in  a  block  where  eight  out 
of  ten  residences  were  occupied  by  white 
persons. 

The  right  to  discriminate  through 
private  contract,  however,  is  not  so 
clearly  defined,  as  already  indicated. 
It  was  hoped  that  a  decisive  opinion 
would  be  handed  down  when  the  Su- 
preme Court  considered  the  case  of 
Corrigan  v.  Buckley,  which  involved  the 
transfer  of  a  piece  of  property  in  Wash- 
ington, D.  C,  upon  which  there  was  a 
restriction  placed  by  mutual  agreement 
of  owners  in  the  block  that  the  several 
parcels  should  not  be  sold  to  negroes. 
The  court  did  not  give  a  conclusive 
decision  on  this  point  asserting  want  of 
jurisdiction.  The  opinion  in  the  case, 
however,  may  be  considered  to  indicate 
what  the  position  of  the  Supreme  Court 
might  be  when  it  is  called  upon  to  decide 
such  an  issue.  It  suggests  an  attitude 
favorable  to  the  free  use  of  the  right  of 
contract  to  control  the  disposition  of 
property.  In  fact,  so  strong  is  the  indi- 
cation that  some  proponents  of  this 
position  are  inclined  to  regard  it  as 
authoritative  on  this  point.  At  any  rate 
the  opinion  is  most  interesting  and  well 
worth  examining.  The  following  ex- 
cerpts give  the  gist  of  the  opinion. 

"This  contention  (that  the  covenant  is 
void  in  that  it  is  contrary  to  and  forbidden 
by  the  5th,  13th  and  14th  Amendments)  is 
entirely  lacking  in  substance  or colorof merit. 
The  fifth  Amendment  is  a  limitation  only 
upon  the  powers  of  the  general  government 
and  is  not  directed  against  the  action  of 
individuals.  The  thirteenth  Amendment  in- 
volving slavery  and  involuntary  servitude, 
that  is,  a  condition  of  enforced  compulsory 


[Footnote  6  continued  from  page  1,7) 
acted  in  the  14th  amendment  of  the  Constitution  pre- 
venting state  interference  with  property  rights  except 
by  due  process  of  law."  (245  U.  S.  60  (1917)  .) 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


49 


service  of  one  to  another,  does  not  in  other 
matters  protect  the  individual  rights  of 
persons  of  the  negro  race.  And  the  prohibi- 
tions of  the  fourteenth  Amendment  have 
reference  to  state  action  exclusively  and  not 
to  any  action  of  private  individuals.  It  is 
state  action  of  a  particular  character  that  is 
prohibited.  Individual  invasion  of  individual 
rights  is  not  the  subject  matter  of  the 
amendment.  It  is  obvious  that  none  of  these 
Amendments  prohibited  private  individuals 
from  entering  into  contracts  respecting  the 
control  and  disposition  of  their  own  property; 
and  there  is  no  color  whatever  for  the  con- 
tention that  they  rendered  the  indenture 
void." 

"Assuming  that  this  contention  (that  the 
indenture  is  void  in  that  it  is  forbidden  by 
the  laws  enacted  in  aid  and  under  the  sanc- 
tion of  the  thirteenth  and  fourteenth  amend- 
ments) drew  in  question  the  'construction'  of 
these  statutes,  as  distinguished  from  their 
'application,'  it  is  obvious  upon  their  face  that 
while  they  provide  inter  alia,  that  all  persons 
and  citizens  shall  have  equal  right  with  white 
citizens  to  make  contracts  and  acquire  pro- 
perty, they,  like  the  constitutional  amend- 
ments under  whose  sanction  they  are  enacted, 
do  not  in  any  manner  prohibit  or  invalidate 
contracts  entered  into  by  private  individuals 
in  respect  to  the  control  and  disposition  of 
their  own  property."7 

A  long  line  of  cases  might  be  cited  to 
show  the  attitudes  of  the  different  state 
courts.  Some  of  them  uphold  restraints 
upon  both  occupancy  and  alienation  and 
some  uphold  them  only  upon  occupancy. 
An  example  of  the  former  position  is 
that  taken  by  a  Missouri  court  with 
reference  to  a  condition  in  a  deed  pro- 
hibiting for  25  years  the  sale,  lease  or 
rental  of  the  property  to  a  negro. 

"It  is  the  rule  that  an  absolute  restriction 
in  the  power  of  alienation  in  the  conveyance 
of  a  fee  simple  title  is  void,  but  it  is  entirely 
within  the  right  and  power  of  the  grantor  to 
impose  a  condition  or  restraint  upon  the 
power  of  alienation  in  certain  cases  to  certain 
persons,  or  for  a  certain  time,  or  for  certain 
purposes.    The  condition  in  the  deed  under 


Table  III.     Restrictions  on  Alienation 
and  Occupancy  {Continued) 


7  271  U.  S.  323;  70  L.  ed.  969  at  972  and  973  (1925). 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Restr 

ctions 

On 
Alienation 

On 

Occupancy 

Oakland,  Cal. 

Mongolians 
and  Africans 
barred 

Blair  Home  Co. 
Altoona,  Pa. 

and  Africans 
barred 

Seattle,  Wash. 

Maple  Hill 

Caucasians 
only 

F.  B.  McKibbin  Co. 
Lansing,  Mich. 

Spokane,  Wash. 

Little  Rock,  Ark. 

Milwaukee-Howard  etc.  Sub'n.  .  . 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Caucasians 
only — Con- 
dition 

Caucasians 
only — Con- 
dition 

Lake  Wales,  Fla. 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Newton,  Mass. 

Oak  Hill  Village 

Arnold  Hartman 
Boston,  Mass. 

Oyster  Harbor,  Inc 

F.  W.  Norris  Co. 
Boston,  Mass. 

Caucasians 
only 

Los  Angeles,  Cal. 

only 

Caucasians 
only 

Los  Angeles,  Cal. 

only 

Birmingham,  Ala. 

Roland  Park 

Baltimore  County,  Md. 

Caucasians 
only 

Caucasians 

Mason-McDuffie  Co. 
San  Francisco,  Cal. 

only 

Louisville,  Ky. 

New  York  City 

Baltimore  County,  Md. 

Van  Sweringen  Co. 
Cleveland,  Ohio 

Calgary,  Alberta 

Caucasians 
only 

Caucasians 

Michigan  Inv.  Co. 
Detroit,  Mich. 

only 

Sunrise  Addition 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Caucasians 
only 

Caucasians 
only 

5° 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


consideration  does  not  come  within  the  rule 
prohibiting  restraints  upon   alienation."8 

The  California  and  Michigan  courts, 
however,  consider  private  restrictions 
on  alienation  invalid  but  uphold  them 
when  applied  to  occupancy.  An  im- 
portant California  case9  to  this  effect 
has  already  been  cited  in  another  con- 
nection (Ch.  Ill,  p.  16).  Two  Michigan 
cases,  Porter  v.  Barrett  and  Parmalee  v. 
Morris,10  uphold  restraints  upon  oc- 
cupancy and  the  former  case  includes  a 
ruling  to  the  effect  that  restraints  upon 
alienation  are  invalid.  The  problem  in- 
volved in  these  cases  is  not  new  but  the 
recency  of  the  dates  shows  that  it  has 
been  occupying  the  attention  of  the 
courts  to  a  greater  extent  in  the  last  few 
years  which  have  witnessed  the  modern 
subdivision  developments. 

This  fact  is  further  emphasized  by  an 
examination  of  the  deeds  included  in 
this  study.  Forty  of  the  total  84  deeds 
contain  racial  restrictions.  Of  these  33 
are  restraints  both  upon  alienation  and 
occupancy;  four  are  upon  alienation 
alone;  and  three  upon  occupancy  only. 
But  more  interesting  than  the  numbers 
in  these  classes  are  the  sources  of  the 
restrictions.  Only  two  of  the  Olmsted  or 
older  group  of  deeds  contain  any  racial 
restrictions  v/hatsoever  and  these  are 
upon  occupancy.  In  other  words,  38  of 
the  40  racial  restrictions  are  found  in 
the  more  recent  instruments. 

Any  discussion  of  the  geographical 
distribution  of  racial  restrictions  is 
hampered  by  the  smallness  of  the  sam- 
ple. Certain  tendencies  may  be  noted, 
however.  The  device  seems  to  be  in 
rather  general  use  in  the  vicinity  of  the 
larger  eastern  and  northern  cities  which 


Table  III.     Restrictions  on  Alienation 
and  Occupancy  (Continued) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Restrictions 

On 

Alienation 

On 

Occupancy 

Sunnymede 

Whitcomb  &  Keller 
S.  Bend,  Ind. 

Caucasians 
only,  except 
business 

Caucasians 
only,  except 
business 

City  Housing  Corp. 
New  York  City 

Tavern  Acres 

N.  Andover,  Mass. 

Tilden  Realty  Corp 

Utica,  N.  Y. 

Sunset  Hill 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Negroes 
barred 

Negroes 
barred 

Uplands 

Victoria,  B.  C 

Wellesley,  Mass. 

Caucasians 
only 

Bowie  &  Trent 
San  Benito,  Tex. 

only 

Scarborough,  N.  Y. 

Vinsetta  Land  Co. 
Detroit,  Mich. 

Caucasians 
only 

Caucasians 

Los  Angeles,  Cal. 

only 

Caucasians 
only 

Caucasians 

Woodmar  Realty  Co. 
Hammond,  Ind. 

only 

William  Zelosky 
Chicago,  III. 

Negroes 
barred 

Van  Alstine  Land  Co. 
Detroit,  Mich. 

8  Koehler  v.  Rowland,  275  Mo.  573,  at  584  (igi 8). 

9  Los  Angeles  Investment  Co.  v.  Gary,  181  Cal.  68o, 
186  Pac.  596  (19 19);  see  also  Janss  Investment  Co.  v. 
fValden,  196  Cal.  753,  239  Pac.  34  (1925). 

10  233  Mich.  373  (1925);  218  Mich.  624  (1922). 


have  experienced  a  large  influx  of  col- 
ored people  in  recent  years.  But  the 
most  pronounced  tendency  is  found  on 
the  Pacific  Coast  where  the  restriction  is 
directed  primarily  against  the  Orientals. 
In  this  connection  it  is  interesting  to 
note  that  several  of  the  racial  restric- 
tions included  in  the  sample  cover  both 
alienation  and  occupancy,  in  spite  of 
the  decision  cited  previously  which 
shows  that  restrictions  against  aliena- 
tion are  not  valid  under  the  California 
Code.  The  presence  of  such  restrictions 
merely  emphasizes  the  fact  that  prohibi- 
tions which  are  technically  illegal  may 
continue  to  exist  because  thev  have  the 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


5i 


sanction  of  the  parties  to  the  agreement. 
As  control  devices,  however,  they  are 
precarious  because  they  may  be  attacked 
at  any  time  by  someone  out  of  sympathy 
with  their  purpose  and  thus  easily  over- 
thrown. 

Of  the  two  forms  in  which  this  restric- 
tion may  be  couched,  the  restrictive 
covenant  is  more  common  than  the  con- 
dition. A  typical  covenant  reads  as 
follows: 

"No  lot  shall  be  sold,  conveyed,  leased  or 
rented  to  any  person  other  than  of  the  white 
or  Caucasian  race,  nor  shall  any  lot  ever 
be  used  or  occupied  by  any  person  other  than 
one  of  the  white  or  Caucasian  race,  except 
such  as  may  be  serving  as  domestics  for  the 
owner  or  tenant  of  said  lot,  while  said  owner 
or  tenant  is  residing  thereon."11 

An  example  of  a  racial  restriction  in 
the  form  of  a  condition  is  the  one  used 
by  Krenn  and  Dato,  of  Chicago: 

"It  shall  be  an  express  condition  in  said 
Deed  that  the  premises  herein  described  shall 
not  be  conveyed  or  leased  by  the  grantee  or 
any  of  the  successors  in  title  of  the  grantee  to 
any  person  who  is  not  a  Caucasian;  that 
neither  the  premises  herein  described  nor 
any  of  the  improvements  thereon  shall  be 
occupied  by  anyone  who  is  not  a  Caucasian; 
and  that  in  the  event  that  the  premises 
herein  described  shall  be  conveyed  or  leased 
by  the  grantee  or  any  of  the  successors  in 
title  of  the  grantee  to  any  person  who  is  not  a 
Caucasian,  or  in  the  event  that  said  premises 
or  any  improvements  erected  thereon  shall  at 
any  time  be  occupied  by  a  person  who  is  not 
a  Caucasian,  the  property  herein  described 
shall  revert  to  the  grantor  in  said  deed  free 
and  clear  from  any  claim  of  the  grantee  or 
the  successor  in  title  of  the  grantee,  such  re- 
version, however,  to  be  subject  to  any  then 
existing  encumbrances."12 

This  discussion  serves  merely  to  empha- 
size the  lack  of  uniformity  both  in  the 
form  of  racial  restrictions  and  in  the 
attitude  of  the  courts  with  respect  to 
them.     It  therefore   behooves  each  in- 


Table  IV.     Restrictions  Pertaining  to 

the  Rights,  Powers  and  Duties  of 

the  subdivider 


11  Fairway  Section,  Thorpe  Bros.,  Minneapolis,  Minn. 

12  Highland  Park  Addition. 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Utility 
Installation 

Reservations 

and 
Modifications 

Alleghany  Furnace 

Baker  Estates 
Altoona,  Pa. 

Easements  re- 
served by 
seller 

Seller  may 
modify  R's  on 
lot  ust-  with 
consent 

Ardmore 

J.  R.  Robertson  &  Co. 
Chicago,  111. 

Arlington  Park 

Laudermilk  Realty  Co. 
Chicago,  111. 

Seller  may 
change  bldg. 
lines,  frontage, 
etc.;  may  as- 
sign powers 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Anchorage,  Ky. 

G.  R.  Morris  Org'n 
Baltimore,  Md. 

bldg.  line, 
grade,  etc.,  in 
approving 
plans 

New  Britain,  Conn. 

Avon  Center  Estates 

H.  F.  Bowse 
Cleveland,  Ohio 

Seller  reserves 
right  to  grant 
consent  for 
utilities 

Aspinwall  Hill  Sub'n 

Brookline,  Mass. 

Belmont  Country  Club 

A.  T.  Mcintosh  Co. 
Chicago,  111. 

Barton  Hills 

Easements  re- 
served by  seller 

Ann  Arbor,  Mich. 

right  to  mod- 

ify 

Best  Manor 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Beacon  Falls,  Conn. 

Bonelli-Adams  Co 

Boston,  Mass. 

Bonnycastle  Terrace 

Louisville,  Ky. 

Seller  reserves 

Thorpe  Bros. 
Minneapolis,  Minn. 

right  to  change 
restrictions 
with  excep- 
tions 

Brookline  Hills  Sub'n 

Brookline,  Mass 

Cuyahoga  View  Heights 

Hoiles  &  Hedden  Co. 
Cuyahoga  Falls,  Ohio 

Easements  re- 
served by  seller 

Seller  reserves 
right  to  mod- 
ify 

Sp-ingfield,  Mass. 

Baltimore,  Md. 

Easements  re- 

Locust Valley,  L.  I. 

served  by 
'  seller 

52 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  IV.     Restrictions  Pertaining  to 

the  Rights,  Powers  and  Duties  of 

the  Subdivider  {Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Utility 
Installation 

Reservations 

and 
Modifications 

Cushing's  Island 

Casco  Bay,  Me. 

Hogle  &  Mawdsley 
Carmel,  Cal. 

Devonshire  Manor  Annex . . . 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Seller  reserves 
right  to  peti- 
tion 

Seller  reserves 
right  to  peti- 
tion 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

S.  S.  Berry 
Chicago,  111. 

Estudillo  Estates 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Chas.  P.  Gray  Co. 
Chicago,  111. 

Seller  reserves 
right  to  enter 
for  installation 

Seller  may 

Thorpe  Brothers 
Minneapolis,  Minn. 

modify  restric- 
tions with  ex- 
ceptions 

Forest  Hills  Gardens 

Sage  Foundation  Homes 
Long  Island 

Seller  reserves 
right  to  enter 
easements 

Seller  may 
modify  with 
consent  of 
owners 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

requires  con- 
sent of  Own- 
ers' Assn. 

Providence,  R.  I. 

Gatewood  Gardens 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Great  Neck  Hills 

Easements  re- 
served by 
seller 

Great  Neck,  R.  I. 

Guy  M.  Rush 
Los  Angeles,  Cal. 

assign  powers; 
may  modify 
with  consent 
of  Assn. 

Guilford 

Baltimore  County,  Md. 

assign  powers; 
may  modify 
with  consent 
of  owners 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Harroun  Park  Sub'n 

Currier  Inv.  Co. 
Detroit,  Mich. 

Highland  Park  Addition .... 
Krenn  &  Dato,  Inc. 
Chicago,  III. 

Seller  reserves 
right  to  peti- 
tion 

Howard-Lincoln,  etc.,  Add'n. 
Krenn  &  Dato 
Chicago,  III. 

George  R.  Morris  Org'n 
Baltimore,  Md. 

dividual  subdivider  to  examine  carefully 
the  laws  on  this  point  in  the  state 
within  which  he  is  operating  before 
framing  his  racial  restrictions. 

Rights,  Powers  and  Duties  of  the 
Subdivider 

This  section  includes  a  variety  of 
items,  one  of  the  most  important  of 
which  has  to  do  with  the  provision  of 
improvements  and  installation  of  the 
utilities.  In  most  of  the  subdivisions 
included  here  at  least  the  first  improve- 
ments have  usually  been  supplied  by  the 
developer.  Few  of  the  deeds  even  men- 
tion them.  An  exception  is  a  deed  in 
which  the  subdivider  states  that  he  will 
provide  such  improvements  as  paving, 
sidewalks,  sewer,  water  and  gas  mains 
and  electric  light  lines  running  to  the 
curb  line  of  the  individual  lots. 

More  usual  are  the  4eeds  which  define 
the  easements  to  be  provided  for  the 
private  utility  connections.  In  the  case 
of  such  easements  it  is  customary  for 
the  seller  to  reserve  the  right  of  ingress 
and  egress  upon  these  easements  for  the 
purpose  of  installing  the  utilities.  A 
typical  restriction  of  this  kind  states 
that 

"Easements  and  rights  of  way  are  hereby 
expressly  reserved  by  The  Baker  Estates  in, 
upon  and  over  the  rear  five  (5)  feet  and  three 
(3)  feet  on  each  side  of  each  lot  shown  on  the 
plot,  and  also  in,  upon  and  over  the  strips 
of  land  indicated  as  reservations,  rights  of 
way,  streets,  lands  and  paths  for  the  follow- 
ing purposes: 

"For  the  erection,  construction  and  main- 
tenance of  poles,  wires  and  conduits,  and  the 
necessary  or  proper  attachments  in  connec- 
tion therewith  for  the  transmission  of  elec- 
tricity for  light  and  power  and  for  telephone 
and  other  purposes: 

"For  the  construction  and  maintenance  of 
storm-water  drains,  land  drains,  public  and 
private  sewers,  pipe  lines  for  supplying  gas 
and  water,  and  for  any  other  public  or  quasi- 
public  utility  or  function  conducted,  main- 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


53 


tained,  furnished,  or  performed  by  or  in  any 
method  beneath  the  surface  of  the  ground. 

"The  Baker  Estates  shall  have  the  right 
to  enter  and  to  permit  others  to  enter  said 
reserved  strip  of  land  for  any  of  the  purposes 
for  which  said  easements  and  rights  of  way 
are  reserved. 

"The  Baker  Estates  reserves  the  right  at 
the  time  of,  or  after,  grading  any  streets,  or 
any  part  thereof,  to  enter  upon  any  abutting 
lot  and  grade  the  portion  of  such  lot  adjacent 
to  such  street  to  a  slope  of  2  to  i,  but  The 
Baker  Estates  shall  not  be  obliged  to  do  such 
grading  or  to  maintain  the  slope."13 

Restrictions  of  this  class  should  contain, 
in  addition  to  the  right  to  pass  and  re- 
pass, the  right  to  erect  poles  or  conduits. 
Failure  to  include  such  provision  is  often 
a  hindrance  to  utility  companies  for 
without  it  they  may  be  liable  for  tres- 
pass. Adequate  easements  for  utility 
installation  and  maintenance  are  par- 
ticularly important  on  private  rights  of 
way,  i.  e.,  when  streets  have  not  been 
dedicated  to  the  municipality. 

The  other  most  common  duty  with 
respect  to  the  utilities  is  the  reservation 
by  the  subdivider  of  the  right  to  petition 
for  their  installation.  A  restriction  to 
this  effect  may  read  as  follows: 

"Said  Second  Party  hereby  further  ap- 
points Bills  Realty,  Inc.,  as  agent  of  said 
Second  Party  to  petition  for  the  installation 
of  sewer,  gas  and  water  mains,  street  lighting 
and  street  paving  in  connection  with  said 
premises  by  special  assessment,  or  to  con- 
tract for  the  installation  in  the  streets  of 
said  Indian  Hill  Estates  Subdivision  or  any 
sewer,  water  and  gas  mains,  street  lights  and 
ornamental  posts  therefor,  street  paving, 
telephone  and  electric  wiring  conduits  by 
private  contract,  and  First  Party  agrees  to 
pay  all  the  installments  of  such  special  as- 
sessments or  the  pro  rata  proportion  of  the 
cost  thereof,  as  hereinabove  provided,  except 
for  sidewalks,  street  paving  and  storm 
sewers.   14 


Table  IV.     Restrictions  Pertaining  to 

the  Rights,  Powers  and  Duties  of 

the  Subdivider  {Continued) 


13  Alleghany   Furnace,   The  Baker  Estates,  Altoona, 


14  Indian  Hill  Estates,  Bills  Realty,  Inc.,  Chicago,  111. 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Utility 
Installation 

Reservations 

and 
Modifications 

Seller  reserves 
right  to  peti- 
tion 

Bills  Realty  Co. 
Chicago,  111. 

Kenilworth  Highlands  Sub'n . 
Wittbold  Realty  Co. 
Chicago,  111. 

A.  H.  Kraus  Co 

Chicago,  111. 

Perry  Park,  Colo. 

Laudermilk  Villa 

B.  H.  Laudermilk  Co. 
Chicago,  111. 

Lake  Shore  Highlands 

Oakland,  Cal. 

Seller  reserves 
right  to  mod- 
ify 

Blair  Home  Co. 
Altoona,  Pa. 

Right  of  way 
reserved 

Seattle,  Wash. 

right  to  mod- 
ify 

Maple  Hill 

F.  B.  McKibbin  Co. 
Lansing,  Mich. 

Spokane,  Wash. 

Little  Rock,  Ark. 

Milwaukee-Howard  Sub'n... . 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Lake  Wales,  Fla. 

modify  with 
consent  of 
owners 

Morningside  Heights 

R.  C  Erskine  &  Co. 
Seattle,  Wash. 

Newton  Blvd.  Sub'n 

Newton,  Mass. 

Oak  Hill  Village 

Arnold  Hartman 
Boston,  Mass. 

requires  con- 
sent of  owners 

F.  W.  Norris  Co. 
Boston,  Mass. 

Pacific  Southwest  Bank 

Los  Angeles,  Cal. 

Pal  os  Verdes  Estates 

Los  Angeles,  Cal. 

Modification 
requires  con- 
sent of  owners 

Seller  reserves 
right  to  enter 
and  make  im- 
provements 

Jemison  &  Co. 
Birmingham,  Ala. 

right  to  mod- 

ify 

Seller  reserves 

Baltimore  County,  Md. 

right  to  assign 

Mason-McDuffie  Co. 
San  Francisco,  Cal. 

sign;  may 
modify  with 
consent  of 
Homes  Assn. 

54 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  IV.     Restrictions  Pertaining  to 

the  Rights,  Powers  and  Duties  of 

the  Subdivider  {Continued) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Utility 
Installation 

Reservations 

and 
Modifications 

Louisville,  Ky. 

New  York  City 

unrestricted 
areas 

Baltimore  County,  Md. 

right  to  assign 

Seller  reserves 
right  to  peti- 
tion 

Van  Sweringen  Co. 
Cleveland,  Ohio 

modify 

Calgary,  Alberta 

S.  Bloomfield  Highlands 

Michigan  Inv.  Co. 
Detroit,  Mich. 

Modification 
requires  con- 
sent of  owners 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Easements  re- 
served by 
seller 

Whitcomb  &  Keller 
South  Bend,  Ind. 

unrestricted 
areas;  may  as- 
sign; may 
modify  with 
exceptions 

Installed 
largely  by 
seller 

City  Housing  Corp. 
New  York  City 

Easements  re- 
served on  rear 
lines 

No.  Andover,  Mass. 

Tilden  Realty  Corp 

Utica,  N.  Y. 

Sunset  Hill            

Easements 
granted  to 
city;  seller  will 
install 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Easements  re- 
served 

Victoria,  B.  C. 

right  to  mod- 
ify and  assign 

Easements  re- 
served on  rear 
lines 

Wellesley,  Mass. 

Easements  re- 
served 

Bowie  &  Trent 
San  Benito,  Tex. 

Scarborough,  N.  Y. 

modify  height 
and  set-back 
rules;  may  as- 
sign powers 

Vinsetta  Park  Sub'n 

Vinsetta  Land  Co. 
Detroit,  Mich. 

Provided  by 
seller 

Los  Angeles,  Cal. 

Woodmar 

Woodmar  Realty  Co. 
Hammond,  Ind. 

William  Zelosky 
Chicago,  111. 

Westwood  Sub'n 

Van  Alstine  Land  Co. 
Detroit,  Mich. 

Another  very  important  reservation 
which  subdividers  frequently  make  is  the 
retention  of  the  power  to  alter  or  modify 
the  restrictive  covenants  at  will.  Some- 
times this  reservation  is  stated  without 
qualification  as 

"The  seller  .  .  .  reserves  the  right  to 
change  or  modify  the  restrictions  on  this  or 
any  property  in  Redmont  Park."15 

In  general  the  retention  of  so  large  a 
power  by  the  subdivider  may  be  said 
to  be  undesirable.  It  affords  an  oppor- 
tunity to  manipulate  the  affairs  of  the 
subdivision  in  his  own  interest.  But  in 
the  hands  of  a  conscientious  subdivider, 
one  who  retains  an  interest  in  the  de- 
velopment, it  may  be  a  good  policy, 
particularly  in  an  emergency  in  which 
prompt  action  is  needed.  A  restriction 
of  this  kind  would  seem  to  have  very 
definite  effect  upon  the  value  of  the  lots 
in  the  subdivision.  It  would  produce  a 
feeling  of  insecurity  as  to  what  might 
happen  next,  which  would  tend  to  lower 
the  price  that  could  be  obtained  for  the 
lots. 

More  usual,  however,  is  a  qualified 
reservation  of  power.  Qualifications 
may  take  any  one  of  several  forms.  The 
subdivider  may  reserve  the  right  to 
modify  only  certain  specific  restrictions. 
When  this  form  is  used,  it  is  usually  only 
the  restrictions  pertaining  to  the  physi- 
cal development  of  the  lots  which  may 
be  thus  arbitrarily  modified.  As  a  corol- 
lary of  this  proposition  is  the  qualifi- 
cation which  permits  the  developer  to 
modify  certain  restrictions  only  within 
definite  limits.  For  instance,  he  may 
reduce  the  setback  requirement  but  not 
bring  it  below  a  specified  minimum. 
Another  form  of  qualification  is  that 
which  states  that  all  clauses  except 
certain  designated  ones  are  subject  to 
this  power.    The  exceptions  in  this  case 

15  Jemison  &  Co.,  Inc.,  Birmingham,  Ala. 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


55 


are  usually  the  racial  restrictions  and 
those  which  enforce  the  developer's 
zone  plan  or  prevent  the  intrusion  of 
nuisances.  Finally,  this  power  of  the 
subdivider  may  be  limited  by  requiring 
the  consent  of  the  lot  owner  or  owners 
affected.  These  illustrations  merely 
show  that  the  blanket  reservation  of 
power  to  modify  as  exemplified  in  the 
above  quotation  (p.  54)  is  the  exception 
rather  than  the  rule.  It  is  impractical 
to  give  examples  of  all  the  various  forms 
of  modification  clauses,  but  the  following 
example  is  fairly  representative  and  in- 
clusive. 

"Provided  that  the  vendor  shall  have  and 
does  hereby  reserve  the  right  in  the  sale  and 
conveyance  of  any  of  said  lots,  to  change, 
alter  or  annul  any  of  the  provisions  in  the 
foregoing  paragraphs  or  in  any  restrictions 
added  hereto,  except  those  in  paragraphs 
numbered  1  and  8  (providing  for  residential 
development  of  all  but  certain  designated 
lots  and  for  racial  restriction)  and  it  may  at 
any  time  thereafter,  with  the  consent  in 
writing  of  the  then  record  owner  of  any  lot 
or  lots,  change,  alter  or  annul  any  such  pro- 
visions as  to  such  lot  or  lots,  or  which  may, 
in  such  sale  and  conveyance,  be  established 
by  it,  such  change  to  be  effectual  without  the 
consent  of  the  owners  of  any  other  lot  or 
lots,  but  no  change  shall  be  made  at  any  time 
in  the  provisions  of  paragraphs  1  and  8  nor 
in  the  other  paragraphs  which  will  permit 
the  erection  or  maintenance  of  any  residence 
nearer  than  30  feet  to  the  front  lot  line  as 
above  provided,  nor  nearer  than  3  feet  to 
either  side  line,  nor  shall  the  required  front- 
age of  land  to  be  used  and  maintained  with 
any  residence  be  reduced  more  than  5  feet 
below  the  minimum  number  of  feet  required 
for  each  residence  without  the  written  con- 
sent of  the  vendor,  or  its  successors,  and  the 
consent  of  50%  of  the  owners  of  the  other 
lots  in  the  same  block  fronting  the  same 
street,  and  of  50%  of  the  owners  of  the  lots 
in  the  opposite  block  fronting  the  same 
street."16 

Another  reservation  of  this  same  gen- 
eral nature  is  that  by  which  the  sub- 


divider  sets  aside  certain  parcels  in  the 
subdivision  without  restrictions.17  The 
existence  of  such  areas  which  are  not 
subject  to  the  same  restraints  as  the 
other  lots  in  the  development  may  well 
cause  prospective  purchasers  some  un- 
easiness. An  unwise  use  of  these  areas 
could  seriously  injure  the  entire  develop- 
ment and  uncertainty  as  to  their  prob- 
able use  might  retard  sales  in  the  sub- 
division, at  least  sales  of  lots  contiguous 
to  or  within  the  influence  of  those 
unrestricted  parcels.  From  the  point  of 
view  of  both  subdivider  and  lot  pur- 
chaser the  wisdom  of  this  reservation  of 
power  may  be  questioned. 

A  final  consideration  in  this  section  is 
the  subdivider's  reservation  of  the  right 
to  assign  his  powers  and  duties  to  an- 
other. This  does  not  mean  that  he  will 
sell  out  his  interest  to  another  who 
would  be  free  to  ignore  the  obligations 
originally  assigned  to  the  developer. 
The  clause  conveying  the  right  to  assign 
generally  contains  the  provision  that  the 
assignee  will  undertake  the  duties  of  the 
original  subdivider  as  set  forth  in  the 
deed.  The  following  paragraph  states 
this  position  clearly: 

"Any  or  all  of  the  rights  and  powers  of 
Westgate  Park  Company  herein  contained 
may  be  assigned  to  any  corporation  or  asso- 
ciation which  is  now  organized  or  which  may 
hereafter  be  organized,  and  which  will  as- 
sume the  duties  of  Westgate  Park  Company 
hereunder  pertaining  to  the  particular  rights 
and  powers  assigned,  and  upon  any  such 
corporation  or  association  evidencing  its 
consent  in  writing  to  accept  such  assignment 
and  assume  such  duties,  it  shall,  to  the  extent 
of  such  assignment,  have  the  same  rights  and 
powers  and  be  subject  to  the  same  obliga- 
tions and  duties  as  are  given  to  and  assumed 
by  Westgate  Park  Company  herein."18 


16  Brown  Section,  Thorpe  Bros.,  Minneapolis,  Minn. 


17  ".  .  .  the  parcels  marked  'Reserved'  on  said 
map  are  not  restricted  in  any  way."  (Scarsdale  Estates, 
New  York  City). 

ls  St.  Francis  Wood,  Mason-McDuffie  Co.,  San 
Francisco,  Calif. 


56 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


The  clauses  which  outline  the  rights, 
powers  and  duties  of  the  subdivider  are 
likely  to  undergo  considerable  change 
in  the  future.  With  the  increase  of  "sub- 
division developments,"  as  opposed  to 
mere  "subdivisions,"  these  clauses  will 
have  to  be  expanded  and  refined  to 
cover  the  added  responsibilities  which 
such  developments  will  entail  for  the 
subdivider.  Elasticity  and  flexibility  in 
these  restrictions  are  essential  to  secur- 
ing a  well-balanced  development.  But 
it  should  be  emphasized  that  these  dis- 
cretionary powers  vested  in  the  sub- 
divider  should  be  applied  strictly  as  an 
administrative  function,  that  is,  in  pro- 
moting the  developer's  plan  for  the 
physical  development  of  the  area  and 
not  as  a  merchandising  function  to  pro- 
mote the  quick  sale  of  lots. 

Duration  of  Restrictions 

Discussion  of  the  duration  of  deed  re- 
strictions falls  logically  into  two  parts: 
(i)  consideration  of  the  original  term  for 
which  such  clauses  are  drawn,  and  (2) 
length  of  the  periods  as  well  as  the 
methods  provided  for  continuing  these 
restrictions. 

Determination  of  the  original  terms 
of  deed  restrictions  is  not  so  simple  as 
would  appear,  for  many  instruments 
contain  a  statement,  for  example,  to  the 
effect  that  "all  of  the  restrictions,  con- 
ditions, covenants,  charges  and  agree- 
ments contained  herein  shall  run  with 
the  land  and  continue  until  January 
first,  1950."  The  date  when  such  clauses 
originated  is  not  given,  hence  the  diffi- 
culty in  ascertaining  accurately  their 
duration  in  years.  Information  as  to 
duration  has  been  secured  for  52  of  the 
84  deeds  examined.  In  the  case  of  the 
Olmsted  group,  actual  duration  was 
given  in  20  of  the  29  instances.  Of  the 
group  of  55  newer  instruments,  actual 
duration  was  given  in  18  cases  and  it  was 


possible  to  secure  a  fairly  accurate  esti- 
mate of  duration  for  14  other  subdivi- 
sions. In  all  cases  where  estimates  were 
made  the  date  of  termination  was  given 
in  the  deed.  In  order  to  determine  the 
date  of  origination  reference  was  made 
to  such  items  as  the  date  on  which  the 
plat  of  subdivision  was  filed,  the  date 
when  payments  should  begin,  the  date 
by  which  certain  first  improvements 
would  be  completed,  the  date  of  the 
form,  etc.  But  throughout  the  discussion 
the  distinction  will  be  maintained  be- 
tween the  durations  which  are  specifi- 
cally stated  and  those  which  have  been 
estimated. 

The  findings  as  to  durations  in  the 
various  groups  of  restrictions  may  be 
summarized  as  follows: 


Groups  of  Restrictions 

Number 

of 

Cases 

Average 
Duration 
in  Years 

Total 

Olmsted  Group 

Actual   duration 

52 

20 

18 
14 

34-4 
39-7 

27.4 
35-9* 

New  group 

Actual  duration 

Estimated  duration 

*  This  figure  includes  the  very  long  period  (estimated  at  101 
years)  of  the  restrictions  drawn  by  the  Van  Sweringen  Co.  of 
Cleveland,  O.,  for  Shaker  Heights.  This  period  is  so  exception- 
ally long  that  it  seemed  advisable  to  calculate  the  average  for 
this  group  without  this  figure.  Therefore  the  average  for  the 
remaining  13  restrictions  is  30.8  years,  which  gives  a  truer  pic- 
ture of  the  facts  for  this  group  and  puts  it  more  in  line  with  that 
portion  of  the  group  for  which  the  actual  data  are  available. 

A  surprising  degree  of  uniformity  is 
revealed  by  these  figures.  The  durations 
tend  to  cluster  about  the  33-year  mark, 
or  the  length  of  a  generation  which  is 
held  by  some  students  of  the  problem  to 
be  a  logical  term  for  restrictions.  Pro- 
ponents of  33-year  restrictions  argue 
that  a  man  buys  a  homesite  when  he  is 
starting  his  career  and  under  the  protec- 
tion of  a  33-year  restriction  he  is  able  to 
live  most  of  his  life  there.  By  the  end  of 
that  time  his  family  wants  to  move  away 
and  the  restriction  will  have  served  its 
purpose.    The  findings  of  this  analysis 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


57 


are  therefore  particularly  interesting  in 
the  light  of  this  contention.  The  discus- 
sion thus  far  is  not  to  be  interpreted  as 
advocating  a  33-year  duration  for  re- 
strictive clauses.  The  term  should  be 
decided  in  the  light  of  certain  economic 
factors  which  exist  for  each  particular 
subdivision.  These  will  be  discussed 
later. 

Comparison  of  the  average  duration 
of  restrictions  for  the  Olmsted  group  and 
for  the  new  group  shows  39.7  years  for 
the  former  and  31.1  years  for  the  latter. 
This  difference  may  be  explained  in  part 
by  the  differences  in  the  properties 
covered.  The  Olmsted  group  probably 
represents  a  higher  general  level  of 
development  than  does  the  newer  group 
and  it  seems  to  be  true  in  general  that 
the  more  highly  developed  the  sub- 
division, the  longer  the  term  of  the  re- 
strictions. For  example,  the  duration  in 
Shaker  Heights  is  101  years,  Roland 
Park  63  years,  Glen  Oaks  46  years,  etc. 
Another  explanation  for  the  difference 
may  be  found  in  the  increased  rapidity 
of  city  growth  which  is  a  particularly 
dominating  influence  in  the  cases  in- 
cluded in  the  newer  group.  In  other 
words,  the  speed  with  which  land 
changes  from  one  use  to  another  as  a 
result  of  city  growth  makes  the  sub- 
divider  hesitate  to  bind  the  land  to  a 
given  usage  for  a  very  long  period. 

The  difficulties  inherent  in  deciding 
upon  the  proper  duration  of  restrictions 
are  numerous.  In  the  first  place  it  is 
absolutely  necessary  to  set  a  definite 
time  limit.  Otherwise  the  restrictions 
would  be  judged  invalid  as  against  public 
policy  under  the  "rule  of  perpetuities." 
The  rule  against  perpetuities  is  used  here 
in  its  less  technical  sense  to  represent  the 
idea  of  remoteness.19    The  law  does  not 


Table  V.    Duration  of  Restrictions 


19  Bouvier,  op.  cit.,  article  on  "Perpetuity."     "  'The 
original   meaning  of  a   perpetuity   is   an    inalienable, 
(Continued  on  page  58) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Original 
Term 

Provisions  for 
Extension 

Alleghany  Furnace 

Baker  Estates 
Altoona,  Pa. 

25  yrs. 

20  yr.  period  with 
consent  of  owners 
of  %  area. 

Ardmore 

J.  R.  Robertson  &  Co. 
Chicago,  111. 

Lr  .idermilk  Realty  Co. 
Chicago,  111. 

25  yrs. 

25  yr.  period  with 
consent  of  owners 
of  s  1  %  front  ft. 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

35  yrs. 

Anchorage,  Ky. 

G.  R.  Morris  Org'n 
Baltimore,  Md. 

48  yrs. 

75%  of  owners 
may  extend  period 

New  Britain,  Conn. 

H.  F.  Bowse 
Cleveland,  Ohio 

Brookline,  Mass. 

Belmont  Country  Club 

A.  T.  Mcintosh  Co. 
Chicago,  111. 

28  yrs. 

Ann  Arbor,  Mich. 

consent  of  owners 
of  %  of  land 

To 
1950 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Beacon  Falls 

Beacon  Falls,  Conn. 

Boston,  Mass. 

58  yrs. 

Louisville,  Ky. 

To 
1964 

Thorpe  Bros. 
Minneapolis,  Minn. 

36  yrs. 

Brookline,  Mass. 

Cuyahoga  View  Heights 

Hoiles  &  Hedden  Co. 
Cuyahoga  Falls,  Ohio 

1976 

Continue  indefi- 
nitely 

Colony  Hills 

i9S° 

Springfield,  Mass. 

consent  of  owners 
of  %  of  land 

Cityco  Realty  Co 

Baltimore,  Md. 

1971 

Locust  Valley,  L.  I. 

original  lots 

Casco  Bay,  Me. 

Hogle  &  Mawdsley 
Carmel,  Cal. 

Devonshire  Manor  Annex 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

To 
i960 

58 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  V.    Duration  of  Restrictions 

{Continued) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Original 
Term 

Provisions  for 
Extension 

Devonshire  Manor 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

To 
•950 

S.  S.  Berry 
Chicago,  III. 

Esiudillo  Estates 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

To 
1950 

20  yrs. 

Chas.  P.  Gray  Co. 
Chicago,  111. 

To 
1964 

Thorpe  Brothers 
Minneapolis,  Minn. 

Forest  Hills  Gardens 

Sage  Foundation  Homes 
Long  Island 

To 
1950 

20  yr.  period  with 
consent  of  owners 
of  %  area 

Fernside 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

To 
>95o 

20  yr.  period  with 
consent  of  owners 
of  65%  area 

Freeman  Sub'n 

Providence,  R.  I. 

To 
1955 

Gatewood  Ga.dens 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Great  Neck  Hills 

To 
1940 

Great  Neck,  L.  I. 

Glen  Oaks 

To 

1973 

20  yr.  period  with 

Guy  M.  Rush 
Los  Angeles,  Cal. 

consent  of  owners 
of  J4  area 

Guilford         

To 
1950 

20  yr.  period  with 

Baltimore  County,  Md. 

consent  of  J:i  own- 
ers 

To 
'950 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Currier  Inv.  Co. 
Detroit,  Mich. 

Highland  Park  Addition 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

To 
i960 

Howard-Lincoln,  etc.,  Sub'n. .  . 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

To 
i960 

Geo.  R.  Morris  Org'n 
Baltimore,  Md. 

Bills  Realty  Co. 
Chicago,  111. 

Kenilworlh  HgMs.  Subd'n 

Wittbold  Realty  Co. 
Chicago,  111. 

A.  H.  Kraus  Co 

Chicago,  111. 

Perry  Park,  Colo. 

B.  H.  Laudermilk  Co. 
Chicago,  III. 

favor  an  interest  which  vests  to  a  remote 
period.  This  attitude  is  in  harmony 
with  the  economic  point  of  view  which 
recognizes  the  undesirability  of  the  pres- 
ent tying  the  hands  of  the  future.  This 
principle  is  particularly  significant  in  its 
application  to  transactions  involving 
real  estate  because  of  the  long-time  effect 
of  an  individual's  act  when  applied  to 
land.  In  determining  the  exact  period  of 
the  restrictions  two  major  elements  are 
to  be  considered:  (1)  the  character  of 
the  proposed  development  and  (2)  the 
character  and  expected  growth  of  the 
community  of  which  the  subdivision  is  a 
part. 

There  are  two  aspects  to  the  problem 
of  the  relation  of  the  character  of  the 
development  to  the  duration  of  the  re- 
strictive covenants.  The  most  important 
is  to  make  sure  that  the  restrictions  shall 
continue  in  force  long  enough  to  estab- 
lish the  character  of  the  district.  In 
other  words,  the  minimum  duration 
must  cover  the  period  of  sale  and  the 
period  required  to  see  the  major  portion 
of  the  area  built  up.  Some  hold  that  this 
minimum  duration  is  sufficient,  arguing 
that  the  built-up  area  can  maintain  it- 
self sufficiently  against  encroaching  uses. 
Others,  however,  favor  a  longer  restric- 
tive period  on  the  ground  that  the  de- 
velopment should  be  protected  during 
its  probable  life  in  the  use  for  which  it 
was  originally  designed.  The  latter  posi- 
tion appears  to  be  more  logical,  for  it 
would  seem  that  protection  is  most  desir- 
able when  the  investment  is  complete. 
The  intrusion  of  an  inharmonious  use 
into  a  built-up  area  would  seem  to  be 

(Footnote  19  continued  from  page  57) 
indestructible  interest.  The  second  artificial  meaning 
is  an  interest  which  will  not  vest  to  a  remote  period. 
This  latter  is  the  meaning  which  is  attached  to  the  term 
when  the  rule  against  perpetuities  is  spoken  of;'  (Gray, 
Perp.  §140.)  The  author  last  cited  considers  it  a  matter 
of  regret  that  the  rule  should  not  have  been  known  as 
the  rule  against  remoteness,  rather  than  the  rule  as 
against  perpetuities." 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


59 


more  serious  than  such  intrusion  into  a 
comparatively  unbuilt  district. 

The  second  aspect  has  to  do  with  the 
kind  of  development  which  it  is  proposed 
to  create.  It  is  impractical  to  put  a  30- 
or  40-year  term  on  restrictions  in  con- 
nection with  a  development  for  medium- 
priced  homes.  The  improvements  on 
such  subdivisions  cannot  be  expected 
to  have  as  long  a  life  as  those  in  the 
high-priced  developments.  The  rate 
of  obsolescence  is  more  rapid.  Thus, 
the  house  may  have  deteriorated  seri- 
ously in  25  years.  But  rather  than  spend 
a  considerable  amount  on  it  the  owner 
will  let  it  continue  to  run  down  for  the 
balance  of  the  restriction  period,  par- 
ticularly if  the  type  of  use  is  likely  to 
change  at  the  end  of  the  period.  A  rela- 
tion should  therefore  be  established 
between  the  life  of  the  improvement  and 
the  duration  of  the  restriction. 

A  more  important  factor  in  the  de- 
termination of  proper  duration  is  the 
expected  growth  of  the  city.  In  a  city 
which  is  growing  rapidly  it  is  obviously 
wise  to  restrict  property  for  a  shorter 
period  than  in  a  city  of  slov/er  growth. 
Two  results  of  failure  to  calculate  dura- 
tion properly  may  be  noted.  From  the 
point  of  view  of  the  city  unwise  restric- 
tions may  create  blighted  districts  which 
stand  in  the  way  of  the  natural  growth 
of  the  city.  From  the  point  of  view  of 
the  owners  of  the  restricted  property, 
they  may  no  longer  supply  the  protec- 
tion which  was  their  aim.  If  the  city 
grows  up  around  them  and  different  uses 
come  up  to  the  very  borders  of  the  sub- 
division, the  character  of  the  commu- 
nity may  be  practically  ruined.  This 
process  may  be  called  the  obsolescence 
of  restrictions. 

Extension  of  Restrictions 

The  extension  of  the  period  of  restric- 
tion consists  of  three  elements:  (1)  the 


Table  V.    Duration  of  Restrictions 
{Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Original 
Term 

Provisions  for 
Extension 

Lake  Shore  Highlands 

Oakland,  Cal. 

To 
1950 

20  yr.  period  with 
consent  65%  of 
land 

20  yrs. 

20  yr.  period 

Blair  Home  Co. 
Altoona,  Pa. 

To 
1965 

Seattle,  Wash. 

Maple  Hill 

F.  B.  McKibbin  Co. 
Lansing,  Mich. 

Spokane,  Wash. 

Little  Rock,  Ark. 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

To 
i960 

To 
1940 

20  yr.  period  with 
consent  of  ma- 
jority 

Lake  Wales,  Fla. 

To 
1930 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Newton  Blvd.  Sub'n 

Newton,  Mass. 

To 
1930 

Oak  Hill  Village 

30  yrs. 

Arnold  Hartman 
Boston,  Mass. 

Oyster  Harbor,  Inc 

F.  W.  Norris  Co. 
Boston,  Mass. 

Pacific  Southwest  Bank 

Los  Angeles,  Cal. 

To 
1936 

37  yrs. 

Los  Angeles,  Cal. 

consent  of  owners 
of  Vi  area 

Jemison  &  Co. 
Birmingham,  Ala. 

Roland  Park 

To 
i960 

Baltimore  County,  Md. 

33  yrs. 

Mason-McDuflfie  Co. 
San  Francisco,  Cal. 

consent  of  owners 
of  x/i  area 

Louisville,  Ky. 

New  York  City 

To 
1920 

Baltimore  County,  Md. 

To 
2026 

Van  Sweringen  Co. 
Cleveland,  Ohio 

changed  by  con- 
sent of  owners  in 
block 

Calgary,  Alberta 

Michigan  Inv.  Co. 
Detroit,  Mich. 

To 
•945 

6o 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  V.    Duration  of  Restrictions 

{Continued) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Original 
Term 

Provisions  for 
Extension 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

25  yrs. 

10  yr.  period  with 
consent  of  owners 
of  51%  front  ft. 

Whitcomb  &  Keller 
South  Bend,  Ind. 

Sunnyside 

City  Housing  Corp. 
New  York  City 

Tavern  Acres 

No.  Andover,  Mass. 

To 
1970 

Tilden  Realty  Corp 

Utica,  N.  Y. 

Sunset  Hill 

25  yrs. 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

consent  of  owners 
of  51%  front  ft. 

To 
1965 

Victoria,  B.  C. 

To 
1970 

Wellesley,  Mass. 

15  yrs. 

Bowie  &  Trent 
San  Benito,  Tex. 

Vanderlip  Sub'n 

Scarborough,  N.  Y. 

To 

1945 

With  consent  of 
75%  of  owners 

To 
1935 

Vinsetta  Land  Co. 
Detroit,  Mich. 

consent  of  owners 
of  %  area 

Los  Angeles,  Cal. 

50  yrs. 

After  20  yrs.  60% 

Woodmar  Realty  Co. 
Hammond,  Ind. 

frontage  may   ask 
abrogation 

To 
1970 

William  Zelosky 
Chicago,  111. 

To 
1 935 

Van  Alstine  Land  Co. 
Detroit,  Mich. 

sent  of  owners  of 
%  lots 

length  of  the  extension  period;  (2)  the 
legal  procedure  involved  in  the  exten- 
sion; and  (3)  the  question  of  who  has  the 
power  to  make  such  extension.  The  most 
common  length  of  the  extension  period 
is  20  years,  with  an  occasional  10-  or  25- 
year  period  mentioned.  The  legal  pro- 
cedure usually  involves  the  execution  of 
a  formal  statement  which  sets  forth  the 
intention  to  continue  the  restrictions 
and  which  shall  be  filed  with  the  recorder 
of  deeds  within  a  specified  time  before 
the  expiration  of  the  original  term. 

Somewhat  less  uniform  are  the  pro- 
visions with  respect  to  the  consent  of  the 


owners  required  for  such  a  continuation. 
The  necessary  number  is  denned  in 
various  ways:  the  owners  of  a  certain 
percentage  of  the  front  footage  in  the 
subdivision,  the  owners  of  a  certain  per- 
centage of  the  total  area,  or  a  certain 
percentage  of  all  the  owners. 

A  typical  restriction  embodying  these 
points  follows: 

"At  the  end  of  this  time,  January  1,  1950, 
the  above  restrictions  shall  be  extended  for  a 
period  of  twenty  years  from  that  date  and 
thereafter  for  successive  periods  of  twenty 
(20)  years.  On  the  date  of  expiration  of  each 
extension  the  restrictions  may  be  removed, 
modified  or  altered  for  the  whole  or  part  of 
the  restricted  area,  if  one  year  prior  to 
January  i,  1950,  and  one  year  prior  to  the 
expiration  of  each  extension,  appropriate 
instruments  in  writing,  consenting  to  the 
removal,  modification  or  alteration  of  the 
restrictions,  shall  be  signed,  executed  and 
acknowledged  by  the  owners  (including  The 
Baker  Estates,  if  they  still  retain  the  fee  to 
one  or  more  lots,  but  not  including  mort- 
gagees) of  not  less  than  two-thirds  of  the 
land  included  in  said  tract,  exclusive  of 
streets  and  parks  intended  for  the  general 
use  of  the  owners  of  the  land  included  in  said 
tract;  and  provided,  further,  that  any  such 
removal  may  be  made  for  the  whole  or  part 
of  above  mentioned  area,  with  the  provision 
that  in  no  case  the  area  shall  be  less  than  the 
total  frontage  within  a  block  on  a  certain 
street  or  avenue,  and  provided  further,  that 
such  instrument  shall  be  filed  with  the 
Recorder  of  Deeds  of  Blair  County  at  least 
one  year  prior  to  the  expiration  of  the  first 
twenty-five  (25)  year  period  or  any  of  the 
twenty  (20)  year  periods  afterward."20 

A  restriction  of  this  nature  places  the 
burden  upon  those  lot  owners  who  wish 
to  alter  the  restrictions.  In  other  words, 
the  restriction  provides  for  the  auto- 
matic renewal  of  the  covenants  for  20- 
year  periods  unless  provision  for  modifi- 
cation is  made  according  to  certain 
prescribed  rules.  But  those  lot  owners 
who  are  desirous  of  making  alterations 
are  charged  with   the  responsibility  of 

20  Alleghany  Furnace,  Baker  Estates,  Altoona,  Pa. 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


61 


initiating  them.  This  method  is  most 
common  and  is  advocated  by  such  a  well 
known  developer  as  Mr.  J.  C.  Nichols. 
Others,  including  Mr.  Bouton,  the  de- 
veloper of  Roland  Park,  advocate  plac- 
ing the  burden  on  those  who  wish  to  ex- 
tend the  restrictions. 

An  interesting  proposal  in  connection 
with  the  whole  problem  of  the  duration 
of  restrictive  argeements  is  that  pro- 
vision be  made  for  the  breaking  of  such 
restrictions  upon  consent  of  a  majority 
of  the  owners.  One  objection  to  this  pro- 
posal is  that  51%  is  a  rather  small  margin. 
Besides,  although  a  majority  of  the 
owners  may  be  ready  to  transfer  their 
property  to  a  higher  use,  the  city  or  sur- 
rounding area  may  not  be  able  to  absorb 
at  once  or  even  within  a  reasonable  time 
the  total  area  of  the  subdivision  which 
would  be  thrown  open  to  the  higher  use 
by  the  vote  of  51%  of  the  lot  owners. 
Furthermore,  only  a  small  part  of  the  lot 
owners  will  be  able  to  take  advantage  of 
the  higher  use  and  the  others  not  so 
favorably  situated  will  suffer  as  a  result. 

In  summarizing  it  should  be  empha- 
sized that  no  general  rule  can  be  laid 
down  for  determining  the  proper  dura- 
tion of  deed  restrictions.  This  matter 
must  be  calculated  for  each  individual 
subdivision  in  the  light  of  the  conditions 
which  will  influence  its  future.  There  are 
certain  limits,  however,  within  which 
this  determination  of  proper  duration 
will  take  place.  The  minimum  length 
of  the  restrictions  will  be  such  as  to  in- 
sure approximately  complete  develop- 
ment of  the  tract.  The  subdivider  must 
protect  the  area  until  its  character  is 
established.  At  the  same  time  he  does 
not  want  to  preclude  the  transition  of 
that  property  into  a  higher  use  when 
that  use  is  economically  advisable. 
Therefore,  the  maximum  limit  of  the 
duration  will  be  determined  by  the  ex- 
pectancy of  change   in   use.      But   the 


Table  VI.    Clauses  Providing  for 
Enforcement  of  Restrictions 


Name  of  Subdivision 
and  Subdivider 
and  Location 

By  Whom 

What  Means 

Alleghany  Furnace 

Baker  Estates 
Altoona,  Pa. 

Run  with  land 

Remove  or  abate 
violation 

Ardmore 

J.  R.  Robertson  &  Co. 
Chicago,  111. 

Laudermilk  Realty  Co. 
Chicago,  111. 

Armour  Hills 

J.  C.  Nichols  Inv.  Co.. 
Kansas  City,  Mo. 

Run  with  land. 

Injunction  to 
prevent  viola- 
tion 

Anchorage  Heights 

Anchorage,  Ky. 

G.  R.  Morris  Org'n 
Baltimore,  Md. 

Reserved  by 
seller 

New  Britain,  Conn. 

Avon  Center  Estates  . .  . 
H.  F.  Bowse 
Cleveland,  Ohio 

Run  with  land 

Entering  to 
abate  or  by  bill 
of  equity 

Aspinwall  Hill  Sub'n 

Brookline,  Mass. 

Belmont  Country  Club  . 
A.  T.  Mcintosh  Co. 
Chicago,  111. 

Run  with  land 

Barton  Hills 

Ann  Arbor,  Mich. 

er's  expense 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

seller  on  viola- 
tion 

Beacon  Falls,  Conn. 

Boston,  Mass. 

Bonnycastle  Terrace. . .  . 
Louisville,  Ky. 

Enter  to  abate 
at  owner's  ex- 
pense 

Owners'  Ass'n 

Thorpe  Bros. 
Minneapolis,  Minn. 

Brookline  Hills  Sub'n. .  . 
Brookline,  Mass. 

Entrance  to 
abate  or  by  law 

Cuyahoga  View  Heights. 
Hoiles  &  Hedden  Co. 
Cuyahoga  Falls,  Ohio 

Run  with  land 

Seller  may  enter 
and  abate  at  ex- 
pense of  owner 

Colony  Hills 

Springfield,  Mass. 

er's  expense 

Cityco  Realty  Co 

Baltimore,  Md. 

Run  with  land 

By  courts 

Locust  Valley,  L.  I. 

Cushing's  Island 

Casco  Bay,  Me. 

Run  with  land 

Hogel  &  Mawdsley 
Carmel,  Cal. 

Devonshire  Manor  Annex 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Seller  and  own- 
ers 

62 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  VI.    Clauses  Providing  for 
Enforcement  of  Restrictions 

{Continued) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

By  Whom 

What  Means 

Devonshire  Manor 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

S.  S.  Berry 
Chicago,  111. 

Estudillo  Estates 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

I 

Reversion  to 
seller 

Fairview  Addition 

Chas.  P.  Gray  Co. 
Chicago,  111. 

Run  with  land 

Fairway  Section 

Thorpe  Brothers 
Minneapolis,  Minn. 

Forest  Hills  Gardens 

Sage  Found'n  Homes 
Long  Island 

Seller  and  own- 
ers 

Seller  may  enter 
to  abate 

Run  with  land 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

ers'  assn.  may 
enter  and  abate 

Freeman  Sub'n 

Providence,  R.  I. 

Gatewood  Gardens 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Run  with  land 

Great  Neck  Hills 

Great  Neck,  L.  I. 

Glen  Oaks 

Homes  Assn. 
Run  with  land 

Guy  M.  Rush 
Los  Angeles,  Cal. 

seller  or  Assn. 
may  abate 

Guilford         

Baltimore  Co.,  Md. 

Run  with  land 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

seller 

Harroun  Park  Sub'n. . .  . 
Currier  Inv.  Co. 
Detroit,  Mich. 

Highland  Park  Add'n . . . 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Howard-Lincoln,  etc. 
Add'n             

Sellers  and  own- 
ers 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

Geo.  R.  Morris  Org'n. 
Baltimore,  Md. 

Indian  Hill  Estates 

Bills  Realty  Co. 
Chicago,  111. 

Kenilworth  Highlands 
Sub'n 

Wittbold  Realty  Co. 
Chicago,  111. 

A.  H.  Kraus  Co 

Chicago,  111. 

Run  with  land 

Lake  Wauconda 

Perry  Park,  Colo. 

Laudermilk  Villa 

B.  H.  Laudermilk  Co. 
Chicago,  111. 

determination  of  both  of  these  limits 
constitutes  a  problem  in  forecasting  and 
is  subject  to  all  the  difficulties  inherent 
in  that  process. 

A  question  might  be  raised  as  to 
whether  modifications  of  restrictions 
would  constitute  valid  grounds  for  not 
enforcing  the  remaining  clauses.  The 
consensus  of  opinion  seems  to  be  that,  if 
the  alteration  did  not  impair  the  benefit 
of  the  scheme,  the  balance  of  the  re- 
strictions would  continue  to  be  enforce- 
able.21 The  concept  of  privity  estate  is 
the  foundation  upon  which  such  opinion 
rests.  It  also  illustrates  the  importance 
which  the  courts  attach  to  a  general  plan 
for  improvement  of  the  area. 

Enforcement  of  Restrictions 

This  section  divides  itself  logically 
into  two  parts:  (i)  the  agencies  by  which 
the  restrictions  may  be  enforced  and  (2) 
the  powers  that  may  be  employed  in  the 
enforcing  process. 

First  of  all,  the  subdivider  may  reserve 
to  himself  the  right  to  enforce  the  re- 
strictions, but  this  reservation  is  un- 
common. The  disadvantage  of  such  a 
provision  is  patent.  The  subdivider's 
interest  ceases  with  the  selling  out  of  the 
subdivision  and  his  departure  removes 
the  enforcing  agent.  The  usual  practice 
is  to  designate  these  restrictive  agree- 
ments as  covenants  running  with  the 
land,  thus  making  them  enforceable 
by  owners  of  the  benefited  land.  A 
typical  example  of  this  type  of  provision 
reads  as  follows: 

"The  herein  enumerated  restrictions,  reser- 
vations, agreements  and  covenants  shall  be 
deemed  as  covenants  and  not  as  conditions 
hereof  and  shall  run  with  the  land  and  shall 
bind  the  Grantee,  heirs,  executors,  adminis- 
trators and  assigns  .  .  .  and  the  pro- 
visions herein  contained  shall  bind  and  inure 
to  the  benefit  of  and  be  enforceable  bv  the 


21   Sanjord  v.   Keer, 
(19"). 


N.  J.  F.q.  240,  8j  Atl.  225 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


63 


Grantor  and  by  the  owner  or  owners,  of  any 
property  in  said  Allotment,  their  legal  repre- 
sentatives, heirs,  executors  and  assigns,  and 
failure  of  the  Grantor  or  any  property  owner 
to  enforce  any  of  such  restrictions,  covenants 
provisions  and  agreements  herein  contained 
shall  in  no  event  be  deemed  a  waiver  of  the 
right  to  do  so  thereafter."22 

Another  agency  of  enforcement  which  is 
becoming  increasingly  important  is  the 
owners'  association.  The  efficiency  of 
such  an  organization  as  an  enforcing 
agent  depends,  of  course,  upon  the 
organization  itself,  i.e.,  whether  it  is  an 
active  or  only  a  perfunctory  body, 
whether  it  is  legally  constituted  or  an 
informal  association.  This  question  of 
organization  and  powers  will  be  dis- 
cussed in  a  subsequent  section.  If  it 
operates  efficiently  and  thoroughly,  it  no 
doubt  makes  an  excellent  enforcing 
medium,  for  it  represents  the  interests 
of  the  entire  area  and  from  the  owners' 
point  of  view. 

The  statement  has  been  made  that 
restrictive  covenants  should  be  enforce- 
able by  the  city.23  The  answer  to  the 
question  of  who  may  enforce  restrictions 
lies  in  the  answer  to  the  question  of  who 
is  the  owner  of  the  land  benefited 
thereby.  As  a  matter  of  law,  only  the 
owners  of  the  benefited  land  have  the 
powers  of  enforcing  covenants.  Certain 
restrictions,  such  as  setbacks,  might  well 
be  considered  to  be  drawn  for  the  benefit 
of  the  city.  In  fact,  instances  of  this  exist. 
Mr.  Robert  Whitten  in  response  to  fur- 
ther questioning  about  enforcement  by  a 
municipality  cited  instances  in  which 
"the  Cleveland  Planning  Commission 
has  in  practice  .  .  .  required  sub- 
dividers  of  residence  property  to  place  a 
building  line  on  the  subdivision  plat  and 

22  Cuyahoga  View  Heights,  Hoiles  and  Hedden, 
Cuyahoga  Falls,  Ohio. 

23  See  Robert  Whitten,  A  Research  into  the  Economics 
of  Land  Subdivisions  (Syracuse:  School  of  Citizenship 
and  Public  Affairs  of  Syracuse  University  and  Regional 
Plan  of  New  York  and  its  Environs,  1927)  p.  12. 


Table  VI.    Clauses  Providing  for 

Enforcement  of  Restrictions 

{Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

By  Whom 

What  Means 

Lake  Shore  Highlands  . . 
Oakland,  Cal. 

Right  reserved 
by  seller 

Run  with  land 

Seller  may  enter 
and  abate 

Blair  Home  Co. 
Altoona,  Pa. 

Licton  Springs  Pk 

Seattle,  Wash. 

Seller  may  enter 
and  abate 

Maple  Hill 

Run  with  land 

P.  B.  McKibbin  Co. 
Lansing,  Mich. 

Spokane,  Wash. 

Justin  Matthews  Co. .  .  . 
Little  Rock,  Ark. 

Milwaukee-Howard, 

Run  with  land 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

Mountain  Lake 

Lake  Wales,  Fla. 

Enter  and  abate 

Morningside  Heights  . .  . 
R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Newton  Blvd.  Sub'n. . .  . 
Newton,  Mass. 

Oak  Hill  Village 

Arnold  Hartman 
Boston,  Mass. 

Remedies  at  law. 
Enter  and  abate 

F.  W.  Norris  Co. 
Boston,  Mass. 

Seller  and  own- 
ers 

Pacific  Southwest  Bank . 
Los  Angeles,  Cal. 

Reversion.  Entry 
to  abate 

Palos  Verdes  Estates  . .  . 
Los  Angeles,  Cal. 

Seller  and  own- 
ers 

Reversion  to 
seller 

Jemison  &  Co. 
Birmingham,  Ala. 

Seller 

Baltimore  Co.,  Md. 

St.  Francis  Wood 

Mason-McDuffie  Co. 
San  Francisco,  Cal. 

Run  with  land 

Seller  may  enter 
and  abate 

Louisville,  Ky. 

New  York  City 

Sudbrook 

Baltimore  Co.,  Md. 

fio  fine  per  day 
after  notice  to 
correct 

Shaker  Heights 

Van  Sweringen  Co. 
Cleveland,  Ohio 

Run  with  land 

Seller  may  enter 
and  abate;  re- 
entry for  breach 
of  condition 

Sunalta 

Calgary,  Alberta 

S.  Bloomfield  Hghlds.  .  . 
Michigan  Inv.  Co. 
Detroit,  Mich. 

Run  with  land 

64 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Table  VI.    Clauses  Providing  for 
Enforcement  of  Restrictions 

{Continued) 


Name  of  Subdivision 

and  Subdivider 

and  Location 

By  Whom 

What  Means 

Sunrise  Addition 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Run  with  land 

Sunnymede 

Whitcomb  &  Keller 
South  Bend,  Ind. 

Run  with  land 

Sunnyside 

City  Housing  Corp. 
New  York  City 

Owners 

No.  Andover,  Mass. 

Tilden  Realty  Corp. 
Utica,  N.  Y. 

Sunset  Hill            

Run  with  land 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Victoria,  B.  C. 

Enter  and  abate 
at  owner's  ex- 
pense 

Owners 

Wellesley,  Mass. 

Run  with  land 

Reversion 

Bowie  &  Trent 
San  Benito,  Tex. 

Vanderlip  Sub'n 

Scarborough,  N.  Y. 

Vinsetta  Park  Sub'n. . .  . 
Vinsetta  Land  Co. 
Detroit,  Mich. 

Run  with  land 

Wagner-Thoreson  Co.  .  . 
Los  Angeles,  Cal. 

Run  with  land 

Reversion  in 
some  cases;  also 
re-entry 

Woodmar 

Woodmar  Realty  Co. 
Hammond,  Ind. 

Owners 

Westchester 

William  Zelosky 
Chicago,  111. 

Run  with  land 

Reversion 

Westwood  Sub'n 

Van  Alstine  Land  Co. 
Detroit,  Mich. 

Run  with  land 

to  state  on  the  plat  that  the  building  lines 
were  established  for  the  benefit  of  the 
city  as  well  as  for  the  benefit  of  the  in- 
dividual lot  owners  and  that  they  were 
enforceable  by  the  city  as  well  as  by  the 
lot  owners."  These  acts  were  "without 
any  legal  authority"  and  it  is  doubtful 
whether  they  would  be  upheld  at  law. 
Even  though  in  the  evolution  of  legal 
opinion  courts  should  eventually  sanc- 
tion such  practice  in  these  instances,  the 
same  principle  would  not  be  applicable 
to    other    restrictions    such    as     those 


specifying  single-family  residences  or  all 
drives  to  be  on  the  left  side  of  the  house. 
It  is  a  fact,  however,  that  municipalities 
do  benefit  from  private  restrictions 
through  economies  in  improvement  at 
least,  even  though  they  may  not  enforce 
these  clauses. 

With  respect  to  enforcement  two 
methods  are  employed  depending  on 
whether  the  restriction  is  a  covenant  or  a 
condition.  As  the  reader  will  recall, 
in  the  case  of  covenants  of  the  type 
discussed  here  the  usual  remedy  is 
found  in  equity  in  the  form  of  an  in- 
junction to  restrain  the  violation.  This 
is  the  accepted  procedure.  Yet  even  in 
the  restrictive  agreements  of  some  of 
the  best  subdivisions  it  is  not  uncom- 
mon to  find  an  attempt  on  the  part  of 
the  subdivider  to  go  further  in  enforcing 
the  restrictions.  Frequently,  under  a 
clause  headed  "right  to  abate,"  he  as- 
serts a  right  to  enter  the  premises  and 
abate  the  violation. 

"Violation  of  any  restriction  or  condition 
or  breach  of  any  covenant  or  agreement 
herein  contained  shall  give  The  Baker 
Estates,  in  addition  to  all  other  remedies, 
the  right  to  enter  upon  the  land  upon  or  as  to 
which  such  violation  or  breach  consists,  and 
summarily  to  abate  and  remove,  at  the  ex- 
pense of  the  owner  thereof,  any  erection, 
thing  or  condition  that  may  exist  thereon 
contrary  to  the  intent  and  meaning  of  the 
provisions  hereof;  and  The  Baker  Estates 
shall  not  thereby  be  deemed  guilty  or  any 
manner  of  trespass  for  such  entry,  abate- 
ment or  removal,  nor  be  liable  to  any  dam- 
ages occasioned  thereby."24 

An  attempt  to  act  on  the  strength  of 
such  a  provision,  however,  seems  danger- 
ous, for  the  enforcing  agent  would  prob- 
ably be  liable  for  trespass.  It  may  be 
useful  as  a  basis  for  procedure  after 
injunctive  relief  has  been  granted  by  the 
court.  In  the  main,  however,  a  clause  of 
this  sort  appears  rather  as  a  gesture  on 

24  Alleghany  Furnace,  Baker  Estates,  Altoona,  Pa. 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


65 


the  part  of  the  subdivider  than  as  a 
workable  restriction.  The  matter  of 
construing  covenants  and  conditions  was 
discussed  in  Chapter  III.  It  is  sufficient, 
therefore,  at  this  point  merely  to  reiter- 
ate that  attempts  to  enforce  restrictions 
by  a  reverter  clause  are  likely  to  fail 
because  the  courts  do  not  favor  insecure 
titles  which  are  involved  in  "conditions 
subsequent." 

However,  certain  circumstances  justify 
the  use  of  a  condition  and  if  the  intention 
of  the  parties  is  clear  the  courts  will 
sustain  the  restriction.  It  therefore 
behooves  the  subdivider  to  be  cautious 
in  the  use  of  the  reverter  clause  for  such 
a  clause  gains  weight  from  limited  and 
well-considered  use.  In  other  words,  a 
particularly  important  restriction,  such 
as  the  prohibition  of  ownership  and  oc- 
cupancy by  non-Caucasians,  may  well  be 
designated  as  a  condition  subsequent; 
thus 

"It  shall  be  an  express  condition  in  said 
deed  that  the  premises  herein  described  shall 
not  be  conveyed  or  leased  by  the  grantee  or 
any  of  the  successors  in  title  of  the  grantee, 
to  any  person  who  is  not  a  Caucasian; 
that  neither  the  premises  herein  described 
nor  any  of  the  improvements  thereon  shall 
be  occupied  by  anyone  who  is  not  a  Cau- 
casian; and  that  in  the  event  that  the 
premises  herein  described  shall  be  conveyed 
or  leased  by  the  grantee  or  any  of  the  suc- 
cessors in  title  of  the  grantee  to  any  person 
who  is  not  a  Caucasian,  or  in  the  event  that 
said  premises  or  any  improvements  erected 
thereon  shall  at  any  time  be  occupied  by  a 
person  who  is  not  a  Caucasian,  the  property 
herein  described  shall  revert  to  the  grantor 
in  said  deed  free  and  clear  from  any  claim  of 
the  grantee  or  the  successors  in  title  of  the 
grantee,  such  reversion,  however,  to  be  sub- 
ject to  any  then  existing  encumbrance."25 

In  addition  to  the  critical  attitude  of 
the  courts,  an  economic  question  may 
be  raised  with  respect  to  the  use  of  con- 
ditions.    One  of  the  subdivider's  chief 


25  Devonshire  Manor,  Krenn  and  Dato,  Chicago,  111. 


aims  is  to  dispose  of  his  interest  in  the 
property  as  quickly  as  possible.  He  is 
usually  very  definite  in  his  unwillingness 
to  resell  properties  for  his  original  pur- 
chasers. Therefore,  it  seems  unlikely 
except  in  very  urgent  cases  that  he 
would  be  anxious  to  enforce  a  restriction 
which  would  bring  the  property  back 
into  his  hands  for  resale.  Furthermore, 
when  the  enforcing  agent  is  an  owners' 
association,  problems  may  easily  arise. 
For  instance,  how  could  such  an  organi- 
zation be  constituted  legally  to  enable  it 
to  receive  title  to  a  piece  of  property 
as  a  result  of  the  operation  of  a  reverter 
clause,  for  "reversion"  implies  return  to 
the  original  grantor.  In  short,  the  great- 
est care  should  be  taken  when  attempt- 
ing to  enforce  restrictive  agreements  by 
threat  of  reversion  of  title. 

Before  leaving  the  matter  of  enforce- 
ment notice  should  be  given  to  a  clause 
frequently  found  which  states  that  fail- 
ure to  take  action  against  violation  of  a 
covenant  shall  not  be  considered  a  waiver 
of  the  right  to  do  so  thereafter.  This 
is  an  attempt  to  escape  a  charge  of 
laches.  The  courts,  however,  seem  in- 
clined to  regard  an  omission  of  enforce- 
ment as  acquiescence  in  the  violation 
and  therefore  to  refuse  to  grant  relief  in 
the  future.26  On  the  other  hand,  cases 
may  be  found  where  courts  have  handed 
down  opposite  rulings.27 

Maintenance  Charges 

The  purpose  of  maintenance  charges 
is  to  secure  funds  for  the  general  upkeep 
and  to  improve  the  appearance  of  the 
subdivision.  They  are  an  important  ad- 
junct to  the  developer's  plan.  Such 
funds  are  particularly  necessary  for 
areas  which  are  outside   the  corporate 

26  Ocean  City  Assn.  v.  Chalfant,  65  N.J.  F.q.  156,  55 
Atl.  801  (1903). 

27  Bacon  v.  Sandberg,  179  Mass.  396,  60  N.  E.  936 
(1901);  also  Zippv.  Barker,  55  N.Y.  Supp.  246  (1898). 


66 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


limits  of  a  municipality  and  which  there- 
fore must  maintain  all  their  own  im- 
provements. The  lists  of  items  for  which 
these  funds  are  to  be  expended  differ 
widely  but  the  clause  reproduced  here 
will  give  an  idea  of  the  nature  of  the 
expenditures  covered. 

"Whitcomb  and  Keller  agree  to  pay  their 
proper  proportion  into  said  fund  for  all  the 
unsold  lots  and  to  apply  the  total  fund  aris- 
ing from  said  charge,  as  far  as  the  same  may 
be  sufficient,  toward  the  payment  of  the  so- 
called  Maintenance  Expenses  incurred  for 
the  following  purposes: 

For  lighting,  improving  and  maintaining 
the  streets  and  the  parks  and  playgrounds, 
if  any,  maintained  for  the  general  use  of 
owners  and  occupants  of  land  included  in 
said  tract,  including  all  grass  and  planted 
areas  within  the  boundaries  of  such  streets, 
parks  and  playgrounds; 

For  caring  for  vacant  and  unimproved 
land,  on  which  said  Maintenance  Charge  is 
being  paid,  and  removing  the  grass  and 
weeds  therefrom; 

For  planting  and  caring  for  trees;  For  ex- 
penses incident  to  the  examination  and  ap- 
proval of  plans  as  herein  provided,  and  to  the 
enforcement  of  the  restrictions,  conditions, 
covenants,  easements,  charges  and  agree- 
ments herein  contained; 

For  taxes  and  assessments,  if  any,  that 
may  be  levied  by  any  public  authority  upon 
the  parks  and  playgrounds  now  or  hereafter 
opened,  laid  out  or  established  for  the  gen- 
eral use  of  the  owners  of  lots  included  in  said 
tract;  and 

For  doing  any  and  all  other  things  that, 
in  the  opinion  of  Whitcomb  and  Keller  may 
be  of  general  benefit  to  the  property  own- 
ers."28 

The  amounts  and  methods  of  assessing 
these  charges  also  differ  greatly.  With 
respect  to  amounts,  no  generalization 
can  be  made.  Such  figures  as  one  mill, 
two  mills,  three  mills  per  square  foot  are 
found  among  the  restrictions  examined. 
In  each  case  this  amount  is  stated  as  the 
maximum  which  may  be  assessed  during 
any"  one  year.    The  following  quotation 

28Sunnymede,  Whitcomb  and  Keller,  South  Bend, 
Ind. 


Table  VII.      Restrictive   Clauses   Pro- 
viding   for    Maintenance    Charges 


Name  of  Subdivision 

and  Subdivider 

and  Location 

Amount 

By  Whom 
Administered 

20c  per  ioo 

sq.  ft.  (min- 
imum) 

Baker  Estates 
Altoona,  Pa. 

Later  a  commit- 
tee of  3  owners 

J.  R.  Robertson  &  Co. 
Chicago,  111. 

Arlington  Park 

Laudermilk  Realty  Co. 
Chicago,  111. 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Anchorage  Heights 

Anchorage,  Ky. 

Pro-rated 

Ashburton 

G.  R.  Morris  Org'n. 
Baltimore,  Md. 

Pro-rated 

New  Britain,  Conn. 

Avon  Center  Estates 

H.  F.  Bowse 
Cleveland,  Ohio 

Aspinwall  Hill  Sub'n 

Brookline,  Mass. 

Belmont  Country  Club 

A.  T.  Mcintosh  Co. 
Chicago,  III. 

Pro-rated 

Ann  Arbor,  Mich. 

owners 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Beacon  Falls,  Conn. 

Bonelli-Adams  Co 

Boston,  Mass. 

Bonnycastle  Terrace 

Louisville,  Ky. 

Equal  on 
all  lots 

Thorpe  Bros. 
Minneapolis,  Minn. 

i  mill  per 
sq.  ft. 

Owners'  Assn. 

Brookline  Hills  Sub'n 

Brookline,  Mass. 

Cuvahoga  View  Heights 

Hoiles  &  Hedden  Co. 
Cuyahoga  Falls,  Ohio 

Colony  Hills 

ioc  per  ioo 
sq.  ft.  per  yr. 

Springfield,  Mass. 

Cityco  Realty  Co 

Baltimore,  Md. 

Cravath  Sub'n 

Locust  Valley,  L.  I. 

Cushing's  Island 

Casco  Bay,  Me. 

Hogle  &  Mawdsley 
Carmel,  Cal. 

Devonshire  Manor  Annex.  . . 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

ADMINISTRATIVE  AND  RACIAL  CLAUSES 


67 


Table  VII.      Restrictive  Clauses   Pro- 
viding   for    Maintenance    Charges 
{Continued) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Amount 

By  Whom 
Administered 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

S.  S.  Berry 
Chicago,  111. 

Estudillo  Estates 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Chas.  P.  Gray  Co. 
Chicago,  111. 

Fairway  Section 

Thorpe  Brothers 
Minneapolis,  Minn. 

1  mill  per 
sq.  ft. 

Owners'  Assn. 

Forest  Hills  Gardens 

Sage  Foundation  Homes 
Long  Island 

2  mills  per 
sq.  ft. 

Seller 

Fernside 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

1  mill  per 
sq.  ft.  min. 

Owners'  Assn. 

Providence,  R.  I. 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Great  Neck  Hills   

$2  per  lot 
to  1926 

Great  Neck,  R.  I. 

Glen  Oaks 

Guy  M.  Rush 
Los  Angeles,  Cal. 

3  mills  per 
sq.  ft. 
maximum 

Homes  Assn. 

Guilford 

Baltimore  County,  Md. 

20c  per  100 
sq.  ft. 
maximum 

Gwin  Unit 

Fred  T.  Wood  Co. 
Oakland,  Cal. 

Harroun  Park  Sub'n 

Currier  Inv.  Co. 
Detroit,  Mich. 

$2  per  lot 
per  yr. 

Highland  Park  Add'n 

Krenn  &  Dato,  Inc. 
Chicago,  111. 

Howard-Lincoln,  etc.,  Add'n. 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Geo.  R.  Morris  Org'n. 
Baltimore,  Md. 

Bills  Realty  Co. 
Chicago,  111. 

Kenilworth  Hghlds.  Sub'n.. . 
Wittbold  Realty  Co. 
Chicago,  111. 

A.  H.  Kraus  Co 

Chicago,  111. 

Perry  Park,  Colo. 

owners 

B.  H.  Laudermilk  Co. 
Chicago,  111. 

is  fairly  typical  of  the  phraseology  used 
in  these  restrictions: 

"All  the  land  shown  on  said  map  entitled 
St.  Francis  Wood  Extension  No.  2,  whether 
owned  by  Westgate  Park  Company  or  other- 
wise (except  streets,  parks,  now  or  hereafter 
opened,  laid  out,  or  established,  open  spaces 
maintained  for  the  general  use  of  owners  of 
property  shown  on  said  map,  and  land  taken 
or  sold  for  public  improvement  or  uses)  shall 
be  subject  to  an  annual  charge,  or  assess- 
ment, of  not  to  exceed  five  mills  ($.005)  per 
square  foot  of  area.  St.  Francis  Homes 
Association  is  hereby  expressly  delegated 
by  Westgate  Park  Company  with  the  sole 
authority  to  fix  the  rate  per  square  foot  of 
such  charge  or  assessment  (which  shall  in  no 
event  exceed  five  mills  ($.005)  and  to  expend 
for  the  purposes  hereinafter  specified  the 
money  paid  in  on  such  charges  or  assess- 
ments. The  right  to  collect  and  enforce  the 
collection  of  such  charges  or  assessments  is 
hereby  retained  by  Westgate  Park  Company 
until  said  right  is  transferred  by  it  to  St. 
Francis  Homes  Association."29 

Lack  of  uniformity  also  exists  with 
reference  to  the  methods  of  assessment. 
Two  methods  predominate:  the  one, 
already  referred  to,  of  a  definite  charge 
per  unit  of  measurement  and  the  other 
a  flat  charge  per  lot  per  year.  Further- 
more, the  units  of  measurement  vary, 
including  frontage  as  a  base  or  total 
number  of  square  feet.  Using  either  of 
these  measurements  as  a  base,  this 
method  of  calculating  the  maintenance 
charge  is  superior  to  the  flat  rate.  It 
distributes  the  burden  more  nearly  in 
proportion  to  the  benefits  derived.  A 
third  method  of  figuring  the  main- 
tenance charge  may  be  mentioned.  This 
method  uses  the  valuation  fixed  by  the 
tax  assessors  as  the  base.  This  procedure 
has  particular  value  when  the  sub- 
division is  not  within  the  corporate 
limits  of  a  municipality  and  is  therefore 
subject  only  to  state  and  county  taxes. 
As  a  safeguard  it  is  usually  best  in  such 


29  St.    Francis    Wood,    Mason-McDuffie    Co.,    San 
Francisco.  Cal. 


68 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


cases  to  insert  a  clause  in  the  restriction 
to  the  effect  that  the  maintenance  charge 
shall  not  exceed  the  tax  levied  in  some 
specified  municipality  in  the  state. 

The  administration  of  these  funds  is 
another  point  to  be  considered.  In  a 
good  many  cases,  such  as  the  one  quoted 
above,  the  subdivider  reserves  the  power 
of  collecting  and  expending  the  funds. 
On  the  other  hand,  numerous  examples 
of  the  exercise  of  such  powers  by  the 
owners'  association  are  found.  In  fact, 
this  duty  is  frequently  one  of  the  first 
responsibilities  placed  upon  such  organi- 
zations. When  owners'  associations  have 
only  a  limited  number  of  functions  to 
perform,  the  administration  of  the  main- 
tenance charges  is  usually  one  of  them. 

From  the  legal  point  of  view,  these 
charges  seem  to  rest  on  sound  precedent. 
They  are  legally  collectible  and  may  be  a 
legitimate  lien  upon  the  land.  An 
opinion  of  a  Missouri  court  illustrates 
the  general  attitude  on  this  point. 

"From  what  has  been  said  it  must  neces- 
sarily follow  that  the  action  of  the  Board  of 
Clifton  Heights  in  levying  an  assessment  of 
five  dollars  on  part  of  lot  thirty-eight  and 
three  dollars  on  part  of  lot  thirty-seven  of 
which  defendant  was  at  that  time  the  owner, 
under  and  by  virtue  of  their  powers  and 
authority  contained  in  said  deed  from  Ken- 
nedy and  Plunkett  to  Fry,  Tebbetts  and 
others,  was  a  legal  and  valid  assessment,  and 
the  judgment  rendered  in  pursuance  thereof, 
declaring  the  same  to  be  a  first  lien  upon  the 
property  owned  by  defendant,  Annex  Realty 
Company  is  a  legal  and  valid  judgment  and 
should  be  affirmed."30 

The  importance  of  considering  main- 
tenance charges  has  not  been  sufficiently 
emphasized  either  in  subdivision  prac- 
tice or  in  the  literature  on  subdivision 
activities.  A  recent  tendency  lias  been 
noticed  in  the  field  of  city  planning  to 
lay  greaterjemphasis  on  the  problem  of 


Table   VII.      Restrictive   Clauses   Pro- 
viding   for    Maintenance    Charges 
{Continued) 


30  Stevens  v.  Annex  Realty  Company,  173     Mo.    511 
(1900). 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Amount 

By  Whom 
Administered 

Lake  Shore  Highlands 

Oakland,  Cal. 

Locust  Hills 

Blair  Home  Co. 
Altoona,  Pa. 

Licton  Springs  Pk. 
Seattle,  Wash. 

50c  per  front  ft. 
per  yr.  minimum 

Maple  Hill 

F.  B.  McKibbin  Co. 
Lansing,  Mich. 

Manito  Park 

Spokane,  Wash. 

Justin  Matthews  Co 

Little  Rock,  Ark. 

Milwaukee-Howard  Sub'n  ... 
Krenn  &  Dato,  Inc. 
Chicago,  111. 

Mountain  Lake 

Lake  Wales,  Fla. 

Pro- rated 

Morningside  Heights 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

Newton  Blvd.  Sub'n 

Newton,  Mass. 

Oak  Hill  Village 

Arnold  Hartman 
Boston,  Mass. 

F.  W.  N  orris  Co. 
Boston,  Mass. 

Pacific  Southwest  Bank 

Los  Angeles,  Cal. 

Palos  Verdes  Estates 

Los  Angeles,  Cal. 

Set  by 
Homes 
Ass'n 

Homes  Ass'n 

Jemison  &  Co. 
Birmingham,  Ala. 

Roland  Park 

25c  per 
front  ft.  per 
year 

Baltimore  County,  Md. 

St.  Francis  Wood 

Mason-McDuffie  Co. 
San  Francisco,  Cal. 

5  mills  per 
sq.  ft.  max. 

Seller  until  as- 
signed to  Homes 
Ass'n 

Sackett  Sub'n 

Louisville,  Ky. 

New  York  City 

Sudbrook 

Baltimore  County,  Md. 

Van  Sweringen  Co. 
Cleveland,  Ohio 

Calgary,  Alberta 

S.  Bloomfield  Highlands 

Michigan  Inv.  Co. 
Detroit,  Mich. 

75^c  per  100 
sq.  ft.  to 
1935 

Sunrise  Addition 

R.  C.  Erskine  &  Co. 
Seattle,  Wash. 

ADMINISTRATIVE  AND  RACIAL  CLAUSES 


69 


Table  VII.      Restrictive  Clauses   Pro- 
viding   for    Maintenance    Charges 
{Continued) 


Name  of  Subdivision 
and  Subdivider 
and  Location 

Amount 

By  Whom 
Administered 

Sunnymede 

Whitcomb  &  Keller 
South  Bend,  Ind. 

15c  per 
front  ft.  per 
year 

Seller 

Sunnyside 

City  Housing  Corp. 
New  York  City 

Payable  un- 
til 1-1-1966 

Tavern  Acres 

No.  Andover,  Mass. 

Tilden  Realty  Corp 

Utica,  N.  Y. 

Sunset  Hill .  . 

Provisions 
in  individual 
deeds  or 
contracts 

J.  C.  Nichols  Inv.  Co. 
Kansas  City,  Mo. 

Uplands 

Victoria,  B.  C. 

50c  per 
front  ft. 
minimum 

Uplands 

Wellesley,  Mass. 

Bowie  &  Trent 
San  Benito,  Tex. 

Vanderlip  Sub'n 

Scarborough,  N.  Y. 

Pro-rated 

Vinsetta  Park  Sub'n 

Vinsetta  Land  Co. 
Detroit,  Mich. 

1  mill  per 
sq.  ft.  for 

5  yra- 

Seller 

Los  Angeles,  Cal. 

Woodmar  Realty  Co. 
Hammond,  Ind. 

Westchester 

William  Zelosky 
Chicago,  111. 

Westwood  Sub'n 

Van  Alstine  Land  Co. 
Detroit,  Mich. 

$1  per  lot 
per  yr.  to 
•  925 

Seller 

financing  city  plans.  Many  instances 
could  be  cited  of  elaborate  city  plans 
which  have  been  drawn  up  during  a 
flurry  of  planning  enthusiasm  but  which 
are  still  on  paper  or,  worse  still,  standing 
in  a  half-completed  condition  as  a 
mockery  to  the  planning  idea. 

A  similar  situation  exists  with  regard 
to  some  subdivisions.  Almost  any  city 
can  afford  at  least  one  example  of  a  sub- 
division with  crumbling  entrance  gates 
or  parkways  grown  up  in  weeds  because 
inadequate  provision  was  made  for  their 
development  or  upkeep.  Such  things 
are  poor  business  from  the  subdivider's 


point  of  view.  They  represent  promises 
unkept  and  cause  unfavorable  reactions 
on  the  part  of  prospective  purchasers  of 
the  last  lots  from  which  the  developer 
expects  to  reap  his  profit. 

Recent  awakening  to  the  importance 
of  the  financial  aspect  of  city  planning 
augurs  well  for  the  future.  It  is  to  be 
hoped  that  a  similar  tendency  will  be 
found  in  the  field  of  subdivision  develop- 
ments. Purchasers  of  subdivision  prop- 
erty should  seek  assurance  that  the 
plans  proposed  for  the  development  will 
be  carried  out,  at  least  in  so  far  as  the 
financial  means  for  their  execution  are 
concerned. 

Miscellaneous  Restrictions 

Two  items  remain  to  be  discussed 
under  this  heading:  the  organization  and 
powers  of  owners'  associations  and  the 
matter  of  reference  in  deeds  to  zoning 
regulations. 

The  formation  of  owners'  associations 
to  look  after  community  affairs  seems  to 
be  a  comparatively  new  development,  at 
least  if  the  sample  analyzed  here  may  be 
considered  representative.  Of  the  older 
subdivisions  referred  to  as  the  Olmsted 
group  only  one  carried  a  provision  for  the 
formation  of  an  association  of  lot  owners 
and  this  one  is  a  recent  development, 
originating  in  1922. 31  But  among  the 
subdivisions  referred  to  as  the  newer 
group  a  number  of  instances  of  this  type 
of  organization  are  found. 

In  some  instances  the  owners'  asso- 
ciation (or  homes  association,  improve- 
ment association,  or  community  associa- 
tion, as  it  is  variously  called)  is  not 
formed  until  after  a  certain  percentage 
of  the  lots  in  the  subdivision  has  been 
sold.  The  theory  behind  this  practice  is 
that  control  by  a  single  legal  entity  (the 
subdivider)  is  simpler  and  more  efficient 


31  Barton  Hills,  Ann  Arbor,  Mich. 


7o 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


during  the  early  stages  of  development. 
The  argument  is  advanced  to  the  effect 
that  it  is  difficult  to  get  a  community 
organization  to  function  when  there  are 
only  a  few  scattered  lot  owners.  On  the 
other  side  is  the  argument  that  the  sub- 
divider's  interest  weakens  as  his  finan- 
cial burdens  become  less  and  he  is 
tempted  to  let  up  on  restrictions  in 
order  to  dispose  of  the  balance  of  his 
lots.  In  other  words,  the  interest  of  the 
home  owners'  association  is  permanent 
as  opposed  to  the  temporary  interest  of 
the  developer. 

Examining  further  the  restrictions 
providing  for  the  organization  of  a  homes 
association  after  a  certain  portion  of  the 
lots  is  sold,  it  is  found  that  the  initiative 
for  such  organization  originates  some- 
times with  the  subdivider  and  sometimes 
with  the  lot  owners.  Quotations  from 
two  deeds  will  illustrate  this  point: 

"When  eighty  per  cent.  (80%)  of  the  lots 
in  said  section  have  been  sold,  the  Vendor, 
at  its  option,  may  organize  an  Improvement 
Association  composed  entirely  of  lot  owners 
in  said  section  and  shall  appoint  a  committee 
of  four  (4)  owners  in  said  section — one  for 
a  term  of  one  (1)  year,  one  for  a  term  of  two 
(2)  years  and  one  for  a  term  of  three  (3) 
years,  who  shall  be  known  as  active  mem- 
bers; and  a  fourth  member  who  shall  be 
known  as  an  inactive  member,  who  will 
automatically  become  an  active  member 
whenever  a  vacancy,  from  any  cause  what- 
soever, shall  occur  among  its  three  active 
members.  When  such  fourth  member  be- 
comes an  active  member,  then  the  majority 
of  the  owners  who  are  members  of  said  Im- 
provement Association  may  appoint  a  lot 
owner  as  the  inactive  member  to  fill  the 
vacancy  of  such  fourth  member;  but  in  the 
event  of  the  failure  of  such  member  of  the 
Improvement  Association  to  make  such  ap- 
pointment within  thirty  (30)  days  after  such 
vacancy  occurs,  then  the  remaining  three 
members  of  such  committee  shall  have  the 
power  to  appoint  an  owner  of  a  lot  in  said 
section  to  fill  such  vacancy.  All  appoint- 
ments shall  be  made  in  writing  and  a  record 
kept  with  said  Association.  The  majority 
of  said  committee  shall  have  the  same  power 


as  if  they  had  been  named  by  the  Vendor 
herein.  This  committee  shall  have  the  right 
of  approval  or  disapproval  as  in  this  para- 
graph provided,  and  when  so  organized  and 
operative,  the  Vendor  herein  shall  be  re- 
lieved and  released  from  any  and  all  lia- 
bility in  connection  with  such  duties."32 

"Should  two-thirds  of  the  lot  owners  of  the 
Maple  Hill  Subdivision  determine  upon  the 
formation  of  a  Community  Association  to 
administer  all  affairs  of  the  owners  and 
occupants  of  said  subdivision,  then  the  owner 
of  each  lot  shall  become  a  member  and  take 
out  one  membership  for  each  lot  and  have 
voting  power  in  accordance  therewith."33 

Both  of  these  methods,  however,  seem 
inadequate,  not  only  with  respect  to 
their  origination  but  also  with  respect 
to  their  form  of  organization  when 
similar  provisions  in  the  Palos  Verdes 
agreement  are  examined. 

It  is  possible  here  only  to  summarize 
briefly  the  Palos  Verdes  method  be- 
cause of  its  great  length  and  detail.  The 
Palos  Verdes  Homes  Association34  is 
an  incorporated  "non-stock,  non-profit 
body  under  the  laws  of  California." 
Its  affairs  are  governed  by  a  board  of 
directors  and  each  lot  purchaser  auto- 
matically becomes  a  member  upon  the 
receipt  of  his  deed.  The  Association  is 
charged  with  the  enforcement  of  the 
restrictive  covenants;  together  with  the 
Art  Jury  it  approves  building  plans  as 
well  as  subdivision  plans;  it  administers 
the  maintenance  charges;  and  is  re- 
sponsible for  the  general  improvement 
and  upkeep  of  the  subdivision. 

A  somewhat  different  situation  is  pres- 
ent in  the  Shaker  Heights  development 
near  Cleveland,  Ohio.  The  area  is  an  in- 
corporated village,  and,  while  the  sub- 
divider  still  retains  many  of  his  powers, 
the  lot  owners  determine  manv  of  their 


32  Brown  Section,  Thorpe  Bros.,  Minneapolis,  Minn. 

33  Maple  Hill,  F.  B.  McKibbin,  Lansing,  Mich. 

34  See  Protective  Restrictions  Palos  Verdes  Estates, 
Los  Angeles  County,  California.  Tract  7333  and 
Tract  8652,  Montemalaga. 


ADMINISTRATIVE  AND  RACIAL  CLAUSES 


7i 


community  affairs  through  the  political 
organization. 

Associations  of  this  type  seem  more 
nearly  adequate  to  safeguard  the  inter- 
ests of  the  lot  owners.  Their  success  is  de- 
pendent, however,  upon  the  development 
of  an  active  community  spirit  which  is 
difficult  both  to  develop  and  to  maintain. 
Furthermore,  they  require  considerable 
activity  on  the  part  of  the  lot  owners, 
who  do  not  as  a  rule  wish  to  be  bothered 
with  details  about  their  residential  prop- 
erty. It  would  seem  logical,  therefore, 
that  the  changes  to  be  expected  in  the 
mechanics  of  organization  of  the  asso- 
ciation would  be  in  the  direction  of 
greater  simplicity.  At  any  rate  changes 
are  sure  to  take  place  because  home 
owners'  associations  are  a  relatively  new 
creation. 

A  final  consideration  is  the  reference 
in  deeds  to  zoning  ordinances  which  ex- 
ist at  the  time  of  development  or  which 
may  be  inaugurated  at  a  future  date. 
The  purpose  of  such  reference  in  the 
deed  is  largely  to  protect  the  developer 
against  possible  contingencies  which 
may  arise,  for  interactions  do  take  place 
between  deed  restrictions  and  zoning 
regulations,  as  will  be  pointed  out  later. 
The  usual  form  of  such  reference  to  zon- 


ing regulations  is  merely  a  statement  to 
the  effect  that  the  lot  purchaser  takes 
title  "subject  to  the  following  covenants, 
conditions  and  restrictions,  including 
zoning  and  building  ordinances." 

In  concluding  the  discussion  in  Chap- 
ters IV  and  V  it  should  be  pointed  out 
that  the  analysis  has  not  been  exhaustive. 
A  number  of  other  restrictions  in  addi- 
tion to  those  treated  here  are  contained 
in  these  deeds.  The  purpose  has  been  to 
confine  attention  to  those  restrictive 
clauses  which  exercise  the  greatest  con- 
trol upon  land  development. 

Furthermore,  it  is  not  possible  to  de- 
duce any  very  satisfactory  conclusions 
from  this  study  as  to  which  of  these 
restrictions  are  most  helpful  in  sales 
promotion  or  which  of  them  are  likely 
to  arouse  "sales  resistance."  Generali- 
zations on  such  matters  are  extremely 
difficult  because  conditions  in  local  mar- 
kets vary  so  greatly.  In  some  localities 
subdividers  literally  sell  the  restrictions 
themselves.  The  sales  value  of  partic- 
ular restrictions  is  therefore  better  se- 
cured from  subdividers  who  are  familiar 
with  local  real  estate  conditions,  as  influ- 
enced by  the  psychology  of  the  individ- 
ual buyers  and  by  subdivision  practice  in 
that  region. 


CHAPTER   VI 

A  Valuation  of  Deed  Restrictions  as  a  Control  Device 


AS  stated  at  the  outset,  deed  re- 
strictions are  important  because 
they  define  and  control  the  rela- 
tionships between  the  subdivider  and 
the  lot  purchaser.  These  relationships 
are  expressed  in  a  transaction  involving 
a  piece  of  land,  as  a  result  of  which  both 
parties  expect  to  receive  certain  desired 
returns.  It  is  well,  therefore,  first  to 
consider  briefly  what  the  subdivider  and 
the  lot  purchaser  are  seeking  from  this 
transaction.  Evaluation  of  restrictive 
agreements  can  then  be  made  on  the 
basis  of  whether  or  not  they  aid  or  hin- 
der the  securing  of  these  ends. 

For  the  purpose  of  arriving  at  the 
aims  of  the  subdivider  and  the  lot  pur- 
chaser, two  assumptions  are  made.  It  is 
assumed  here  that  the  subdivider  is 
seeking,  not  merely  to  dispose  of  lots, 
but  to  lay  the  foundation  for  a  com- 
munity of  homes,  what  has  been  called 
here  a  "subdivision  development."  For 
the  lot  purchaser  it  is  assumed  that  he  is 
buying  a  lot  for  use  as  a  home  site,  and 
not  for  speculative  purposes. 

In  the  light  of  these  assumptions 
three  aims  of  the  subdivider  may  be  dis- 
tinguished. He  is  seeking  (i)  the  highest 
possible  prices  for  his  lots  consistent 
with  (2)  quick  turnover  of  the  subdi- 
vision property,  and  (3)  a  complete  and 
economical  development.  The  last  item 
includes  substantial  and  attractive  struc- 
tures, protection  against  inharmonious 
uses  both  within  and  without  the  area, 
and  economies  of  improvement. 

To  say  that  the  subdivider  is  seeking 
the  highest  possible  price  for  his  lots 
seems  to  beg  the  question.  Yet  there  are 
certain  rather  definite  limitations  on 
the  prices  he  may  or  should  ask.     His 


main  consideration  is  not  to  set  a  price 
so  high  that,  if  reselling  begins,  it  will 
undermine  the  balance  of  his  sales.  If 
the  subdivider  seeks  both  high  prices 
and  quick  turnover,  this  seems  at  first 
thought  equivalent  to  riding  two  horses 
in  opposite  directions  at  the  same  time, 
for  higher  prices  tend  to  curtail  effective 
demand.  But  the  subdivider  may  at- 
tempt to  avoid  this  result  in  two  dif- 
ferent ways.  After  examining  real  estate 
market  conditions  he  may  figure  that 
business  is  going  to  improve  and  he  will 
thus  be  able  to  make  quick  sales  while 
also  securing  relatively  high  prices.  He 
has  also  another  alternative.  He  may 
create  a  commodity  which  will  have 
such  a  strong  appeal  to  a  specific  income 
group  that  he  will  be  able  to  dispose  of 
his  lots  quickly  at  increased  prices.  In 
other  words,  although  the  increased 
price  may  cut  down  the  general  effective 
demand,  the  specialized  character  of  the 
commodity  may  increase  the  demand  of 
a  particular  income  group  and  thus  make 
it  possible  to  secure  high  prices  and  quick 
turnover  at  the  same  time.  The  dif- 
ficulty of  striking  the  proper  balance 
to  secure  both  these  objectives  is  ob- 
vious. 

The  lot  purchaser  would  also  like  to 
profit  from  an  increase  in  land  values, 
although  this  may  be  a  secondary  con- 
sideration with  him.  Under  the  assump- 
tions stated,  he  is  primarily  concerned 
with  securing  the  relative  permanency 
of  his  investment,  and  its  protection 
against  the  deteriorating  influence  of 
undesirable  neighbors  or  inharmonious 
uses.  Finally,  he  is  seeking  amenities 
for  his  home  site,  in  the  shape  of  at- 
tractive surroundings. 


EVALUATION  OF  RESTRICTIONS 


73 


How  economically  do  restrictions  in 
deeds  secure  these  ends?  The  statement 
is  often  made  that  deed  restrictions  in- 
crease the  value  of  the  restricted  prop- 
erty. But  is  this  unqualifiedly  true?  It 
does  seem  to  be  true,  if  the  restrictions 
are  carefully  drawn,  for  the  early  years 
during  which  the  restrictions  are  in 
operation;  the  assurance  of  protection 
against  inharmonious  uses  is  a  market- 
able quality,  having  a  distinct  value. 
Or  this  increased  value  of  restricted 
property  may  arise  from  the  scarcity  of 
properties  of  this  class.  But  whether  the 
added  value  is  the  result  of  increased 
utility  arising  out  of  greater  desirability 
or  whether  it  is  a  scarcity  phenomenon 
makes  little  difference.  The  subdivider 
is  concerned  with  the  increased  value  as 
such  and  is  satisfied  that  deed  restric- 
tions contribute  to  that  value. 

The  case  of  the  lot  purchaser  is  dif- 
ferent. He  hopes  for  increased  value  in 
the  future,  when  the  property  shifts  to 
a  higher  use.  For  him,  then,  deed  re- 
strictions may  be  an  obstacle,  par- 
ticularly if  they  are  drawn  for  too  long 
a  period.  In  order  to  secure  the  in- 
creased value  desired  by  the  lot  pur- 
chaser it  is  necessary  that  the  restriction 
be  drawn  in  such  a  way  as  to  strike  the 
proper  balance  between  a  maximum  of 
amenities  and  a  minimum  of  injury 
through  precluded  uses  in  the  future. 
Because  of  the  great  difficulties  in- 
volved in  establishing  their  proper  dura- 
tion, deed  restrictions  may  work  against 
the  securing  of  an  increased  value  from 
.  change  of  use.  Furthermore,  restrictive 
clauses  tend  to  reduce  the  speculative 
element  in  subdivision  property  because 
they  establish  specified  uses  of  the  land 
for  definite  periods  of  time  and  thus 
preclude  immediate  turnover  for  another 
use.  Finally,  a  restriction  which  has 
been  broken  may  hamper  sale  of  the 
property.    The  clause  remains  on  record 


to  confront  the  prospective  purchaser 
even  though  it  may  long  since  have 
become  a  dead  letter.  It  thus  impairs 
the  marketability  of  the  property.  In 
short,  deed  restrictions  are  more  im- 
portant to  the  lot  purchaser  from  the 
point  of  view  of  stabilizing  both  the  use 
and  value  of  his  lot  than  of  enhancing 
its  value.  This,  after  all,  is  the  important 
consideration  when  the  assumption  is 
made,  as  here,  that  he  purchases  for  use 
and  not  for  speculation. 

The  subdivider's  second  aim  is  rapid 
turnover.  Restrictive  covenants  may 
both  help  and  hinder  him  here.  In  the 
first  place,  comprehensive  restrictions 
applied  to  a  subdivision  may  tend  to 
reduce  the  number  of  purchasers  who 
are  available  for  that  property.  The  ap- 
peal is  likely  to  be  to  a  smaller  group. 
However,  other  important  factors  enter 
into  the  consideration.  The  condition 
of  the  local  market  is  of  prime  im- 
portance. If  there  is  a  dearth  of  sub- 
division property  of  the  class  which  is 
being  created  under  restrictions,  then 
the  limiting  effect  of  these  agreements 
might  not  be  felt.  In  this  case  the  re- 
strictive clauses  may  promote  more 
rapid    turnover. 

Paralleling  this  aim  of  the  subdivider 
is  the  desire  of  the  lot  owner  for  protec- 
tion of  his  investment.  He  seeks  pro- 
tection first  against  undesirable  neigh- 
bors and  here  he  must  rely  upon  deed 
restrictions  alone,  for  only  by  contrac- 
tual agreements  of  this  kind  can  such 
protection  be  secured.  Secondly,  he 
seeks  protection  against  inharmonious 
uses  and  deed  restrictions  are  only 
partially  successful  for  this  purpose. 
The  potential  inclusiveness  of  restrictive 
clauses  can  give  him  greater  protection 
within  the  subdivision  than  he  can  se- 
cure from  any  other  means  of  control. 
But  deed  restrictions  control  only  a 
limited  area  and  inharmonious  uses  en- 


74 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


croaching  to  the  very  boundaries  of  the 
subdivision  may  cast  their  shadows 
within  its  borders.  For  securing  perma- 
nency of  in  vestment,  restrictions  properly 
drawn  may  be  said  to  be  adequate.  The 
lot  owner  is  usually  concerned  only  with 
a  period  corresponding  to  the  span  of  his 
own  life  and,  as  stated  previously,  it  is 
possible  for  restrictive  clauses  to  secure 
protection  for  at  least  a  generation.  This 
point  should,  of  course,  be  considered  in 
relation  to  the  problem  of  the  duration 
period  and  its  connection  with  the 
growth  of  the  community  as  a  whole. 

Protection  of  investment  also  involves 
problems  of  enforcement.  One  of  the 
weaknesses  of  restrictions  has  been  the 
fact  that  their  enforcement  has  de- 
pended upon  private  initiative.  If 
individuals  were  lax  in  assuming  re- 
sponsibility, enforcement  suffered.  The 
weakness  of  the  subdivider  as  the  en- 
forcing agent  was  mentioned  previously 
as  another  illustration  of  the  inadequacy 
of  deed  restrictions  to  protect  the  in- 
vestment. The  increasing  use  of  legally 
constituted  home  owners'  associations 
promises  to  reduce  these  weaknesses 
supposed  to  be  inherent  in  restrictive 
clauses. 

Finally,  in  connection  with  the  in- 
vestment aspect  is  the  consideration  of 
the  effect  of  deed  restrictions  on  borrow- 
ing. The  presence  of  conditions  subse- 
quent in  deeds  is  frequently  an  obstacle 
to  the  owner  who  wishes  to  borrow  with 
the  lot  as  security.  Some  insurance  com- 
panies are  especially  particular  on  this 
point  and  often  will  not  lend  money 
upon  property  so  restricted  because 
they  regard  the  title  as  too  insecure. 
This  is  especially  true  in  cases  where  the 
insurance  company  is  in  a  distant  city 
and  does  not  know  the  local  situation 
with  regard  to  the  property  to  be  mort- 
gaged. Restrictive  covenants,  on  the 
other  hand,  may  or  may  not  be  obstacles 


to  borrowing.  Banks  and  insurance 
companies  are  beginning  to  take  precau- 
tions against  lending  on  property  which 
does  not  comply  strictly  with  the  regu- 
lations set  forth  in  its  deed,  but  when 
these  covenants  are  carefully  observed, 
they  seem  to  be  no  hindrance  to  bor- 
rowing. 

With  respect  to  the  third  aims  of  both 
the  subdivider  and  the  lot  purchaser — 
complete  and  economical  development 
and  amenities,  respectively — there  can 
be  little  doubt  as  to  the  effectiveness  of 
deed  restrictions  in  securing  these  ends. 
From  the  point  of  view  of  the  subdivider 
careful  observance  of  well-framed  agree- 
ments will  result  in  good  development  in 
the  early  stages  which  may  help  in  the 
rapid  disposal  of  the  balance  of  the  lots, 
wherein  the  profit  for  the  developer  lies. 
It  is  generally  said  that  the  returns  from 
the  sale  of  the  last  fourth  of  the  lots 
constitute  the  profits  to  the  subdivider. 
The  returns  from  the  sale  of  the  first 
three-fourths  are  required  to  meet  the 
expenses  of  the  development  process. 
From  the  point  of  view  of  the  lot  pur- 
chaser the  adaptability  of  deed  restric- 
tions to  fit  particular  situations  affords 
opportunity  for  securing  the  maximum 
amenities  which  a  given  site  is  capable 
of  producing. 

Deed  Restrictions  and  Zoning  Compared 

No  discussion  of  deed  restrictions  is 
complete  without  at  least  some  com- 
parison of  them  with  zoning  regulations. 
It  is  not  proposed  to  go  into  this  ques- 
tion exhaustively  here  but  only  to  make 
a  few  comparisons  and  indicate  briefly 
some  of  the  relationships  between  the 
two  forms  of  control. 

Such  a  comparison,  however,  intro- 
duces a  new  element.  Up  to  this  point 
deed  restrictions  have  been  evaluated 
only  in  terms  of  their  effect  upon  rela- 
tionships  between    the   subdivider   and 


EVALUATION  OF  RESTRICTIONS 


75 


the  lot  purchaser.  To  compare  them 
with  zoning  it  is  necessary  to  take  a 
public  point  of  view,  instead  of  the  point 
of  view  of  the  limited  group  concerned 
in  the  transaction. 

The  differences  between  the  two 
methods  of  control  are  more  or  less 
familiar  and  may  be  gone  over  hastily. 
The  fact  that  zoning  comprehends  a 
larger  area  than  do  restrictive  cove- 
nants is  obvious,  as  are  certain  marked 
advantages  accruing  from  systematic 
control  as  well  as  from  this  larger  sphere 
of  influence.  But  the  very  fact  that 
zoning  does  deal  with  large  areas  creates 
serious  problems.  The  mapping  of  use 
districts  requires  the  utmost  care  on  the 
part  of  zoning  authorities,  particularly 
where  one  district  borders  on  another. 
In  such  cases  the  drafters  of  the  zone 
plan  should  scrutinize  each  step  lest 
they  lay  themselves  open  to  the  charge 
of  arbitrary  action.  The  recent  decision 
of  the  United  States  Supreme  Court  in 
Nectow  v.  The  City  of  Cambridge,  Massa- 
chusetts1 emphasized  this  point  again. 
Zoning  control,  while  recognized  by  the 
courts  to  be  legitimate  and  desirable, 
must  be  applied  with  painstaking  care 
lest  it  be  attacked  as  an  unreasonable 
exercise  of  the  police  power.  Even 
though  it  does  deal  with  relatively  large 
areas,  the  details  of  its  application  are 
very  important,  particularly  in  border 
line  cases. 

A  second  point  of  comparison  be- 
tween zoning  and  restrictive  covenants 
in  deeds  is  their  relative  flexibility. 
Deed  restrictions  are  said  to  be  rigid 
because  they  endure  for  a  specified 
length  of  time.  It  should  be  recalled  in 
this  connection  that  in  addition  to  the 
provisions  stating  the  duration  of  the 
restriction  the  conveyances  usually  con- 
tain two  other  clauses  of  equal  impor- 


1  No.  509,  U.  S.  Sup.  Ct.;  72  L.  ed.;  48  Sup.  Ct.  Rep. 
(Decided  May  14,  1928). 


tance:  one  providing  for  its  extension  if 
desired  by  a  certain  proportion  of  the  lot 
owners  and  the  other  providing  for 
annullment  of  the  restrictions  on  con- 
sent of  the  lot  owners.2  In  other  words, 
the  same  instrument  which  states  the 
life  of  the  restrictive  clauses  provides 
for  their  modification.  The  courts  also 
may  supply  flexibility  to  the  operation 
of  deed  restrictions  by  upholding  or  re- 
fusing to  uphold  deed  restrictions  ac- 
cording to  conditions  prevailing  in  the 
district  in  question.  In  short,  deed  re- 
strictions are  not  the  ironclad  rules  they 
are  often  accused  of  being.  Zoning  regu- 
lations, on  the  other  hand,  are  said  to 
be  flexible  as  a  result  of  certain  dis- 
cretionary powers  resting  in  the  board 
of  appeals  or  legislative  powers  residing 
in  the  city  council.  But  this  very 
amendibility  of  zoning  ordinances  may 
constitute  a  weakness,  particularly  if  it 
is  a  loophole  for  political  manipulation. 
Moreover,  there  is  the  difficult  problem 
of  amending  a  comprehensive  scheme, 
at  the  same  time  keeping  its  compre- 
hensive character. 

Flexibility  may,  however,  be  used  in  a 
different  sense,  adaptability  to  individ- 
ual situations.  In  that  sense  deed  re- 
strictions are  unquestionably  more  flex- 
ible than  zoning.  Instead  of  consisting 
of  blanket  regulations  applicable  to  all 
properties  alike  as  zoning  must  be,  re- 
strictive clauses  may  be  adapted  to  dif- 
ferent kinds  of  developments.  Many 
or  few  may  be  the  restrictions  included 
in  a  deed  according  to  the  type  of 
development  desired.  Zoning,  on  the 
other  hand,  supplies  uniform  rules  for 
each  type  of  use  district  and  because  of 
this  limitation  we  may  expect  deed  re- 
strictions to  continue  as  important  in- 
struments supplementing  and  refining 
the  zone  classifications. 

On  the  point  of  extensivity  deed  re- 

2  See  pp. 59-62. 


76 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


strictions  have  a  distinct  advantage 
over  zoning,  for  they  may  include 
several  types  of  regulations  which  are 
at  present  barred  to  zoning.  Racial 
segregation  and  control  of  the  aesthetics 
of  private  developments  are  the  two 
most  important  items  in  this  connection. 
But  more  important  than  the  dif- 
ferences between  deed  restrictions  and 
zoning  are  the  relationships  between 
them,  for  they  are  frequently  found  in 
operation  at  the  same  time  and  on  the 
same  piece  of  property.  The  statement 
has  been  made  that 

"No  private  restrictions  need  ever  refer 
to  zoning,  nor  need  any  zoning  ordinance 
ever  refer  to  private  restrictions.  They  are 
entirely  separate  and  apart.  Courts  will  not 
usually  listen  to  the  private  restrictions  in 
trying  a  zoning  case,  nor  to  the  zoning  regu- 
lations in  trying  a  private  restrictions  case. 
They  go  hand  in  hand  with  each  other  and 
never  conflict."3 

But  experience  and  recent  court  de- 
cisions do  not  support  this  statement. 
Deed  restrictions  may  affect  zoning 
regulations  and  vice  versa. 

The  interrelation  is  evidenced  first  in 
the  fact  that  both  zoning  ordinances  and 
deed  restrictions  frequently  mention  the 
other  form  of  control.  Typical  of  the 
deed  restrictions  referring  to  zoning  is 
the  clause  stating  that  "the  above 
described  property  shall  also  be  subject 
to  building  and  zoning  ordinances  now 
in  force  or  to  be  put  in  force."4  Zoning 
ordinances,  on  the  other  hand,  often 
state  that  they  do  not  annul  or  abrogate 
any  covenant  or  agreement"'  but  some 
are  more  specific  in  their  pronounce- 
ments, and  emphasize  the  interrelation 
between   zoning   and   deed   restrictions. 

3  E.  M.  Bassett,  Discussion,  Planning  Problems, 
Papers  and  Discussions,  National  Conference  on  City 
Planning,   1926,  p.  71. 

4  Arthur  T.  Mcintosh,  Belmont  Country  Club 
Addition,  Chicago,  111. 

6  Kramer  v.  Nelson,  189  Wis.  560  (1926);  Welch  v. 
Swasey,  193  Mass.  364  at  371  (1907). 


For  example,  the  Zoning  Commission 
Act  for  the  District  of  Columbia  con- 
tains the  following: 

"This  act  shall  not  abrogate  or  annul  any 
easements,  covenants  or  other  agreements 
between  parties:  Provided,  however,  that 
as  to  all  future  building  construction  or  use 
of  premises  where  this  Act  or  any  orders  or 
regulations  adopted  under  the  authority 
thereof  impose  a  greater  restriction  upon  the 
use  of  buildings  or  premises  or  upon  height 
of  buildings,  or  requires  larger  open  spaces 
than  are  imposed  or  required  by  existing 
law,  regulations,  or  permits,  or  by  such 
easements,  covenant,  or  agreements,  the 
provision  of  this  act  and  of  the  orders  and 
regulations  made  thereunder  shall  control."6 

But  more  important  than  the  fact  of 
interrelation  is  the  question  of  what 
rules  are  being  worked  out  with  respect  to 
the  dominance  of  one  form  or  the  other. 
The  litigated  cases  in  which  such  rules 
will  be  evolved  are  still  too  few  to  afford 
any  conclusive  statements  but  certain 
facts  and  tendencies  are  worthy  of  note. 

Take  the  case  of  an  area  which  has 
been  developed  as  a  high-class  residential 
district  as  the  result  of  carefully  drawn 
deed  restrictions.  It  is  not  uncommon 
for  framers  of  zoning  ordinances  to 
respect  this  development  in  their  plans 
whenever  possible.  In  one  case  the 
zoning  authorities  went  even  further. 
On  the  theory  that  property  owners  who 
have  long  complied  with  restrictions  as 
to  residential  use  deserve  protection  the 
drafters  of  the  zone  plan  extended  the 
residential  area  to  include  land  not 
originally  restricted  to  that  use.  A 
permit  to  build  an  apartment  on  this 
additional  residential  land  was  then  re- 
fused on  the  ground  that  it  would  con- 
stitute a  nuisance  to  those  who  had  built 
in  accordance  with  the  restrictions.7 
This   is   a   case  of  a  zoning   ordinance 


6  Quoted   in   Castleman  v.  .-fvignone,  56  D.   C.   App. 
253,  at  259,  (1926). 

7  Minkus  v.  Pond,  326  111.  467,  158  N.  E.  121  (1927). 


EVALUATION  OF  RESTRICTIONS 


77 


supporting  and  extending  the  plan  in- 
augurated under  deed  restrictions. 

Much  more  difficult  are  the  problems 
where  the  standards  of  the  two  control 
devices  are  different.  When  the  zoning 
ordinance  establishes  higher  standards 
than  the  restrictive  covenants,  no  par- 
ticular problem  is  involved,  for  in  that 
case  the  ordinance  is  meeting  no  dif- 
ferent situation  than  it  does  in  applica- 
tion to  unrestricted  properties.8 

But  a  very  different  situation  exists 
when  the  deed  restrictions  are  more 
severe  than  zoning  regulations.  Can  a 
zoning  ordinance  legalize  a  lower  use  of 
the  property  than  that  permitted  by  the 
restrictive  agreement?  Does  the  classi- 
fication of  property  for  business  use  by  a 
zoning  ordinance  require  the  owners 
thereof  so  to  use  it?  The  consensus  of 
opinion  in  the  few  recent  cases  avail- 
able on  the  question  is  negative.  A 
leading  case  is  that  of  Ludgate  v.  Somer- 
vi//e9.  Both  plaintiff  and  defendant 
owned  lots  in  a  subdivision  restricted  to 
residential  use.  Subsequently  a  zoning 
ordinance  was  enacted  which  permitted 
business  of  certain  kinds  in  this  district. 
The  defendant  wanted  to  erect  a  filling 
station  on  his  property  and  the  plaintiff 
sought  an  injunction  on  the  ground  that 
it  violated  the  restriction.  Three  points 
in  the  opinion  reveal  the  attitude  of  the 
court.  The  character  of  the  district  was 
one  consideration.  The  injunction  was 
granted  mainly  on  the  ground  that  the 
character  of  the  district  had  not  so 
changed  as  to  make  the  operation  of  the 
restrictive  covenant  inequitable.  A 
New  York  court  in  a  case10  decided  a 
year  previously  had  refused  an  injunc- 
tion against  the  erection  of  a  business 
building  on  a  site  restricted  to  resi- 
dential   use.        Various    grounds    were 

8  See  n.  7. 

9  121  Ore.  643,  256  Pac.  1043  (1927). 

10  Forstmann  v.   Joray  Holding  Co.,  244  N.  Y.   22 
(1926). 


cited,  including  the  fact  that  the  re- 
striction had  but  two  more  years  to  run 
and  that  the  plaintiff's  gain  would  not 
be  at  all  commensurate  with  the  defend- 
ant's loss  because  the  character  of  the 
district  had  so  changed  that  enforce- 
ment of  the  restriction  would  not  re- 
store the  original  condition  of  the  neigh- 
borhood. This  matter  of  the  "character 
of  the  district"  is  one  of  the  focal  points 
about  which  disputes  between  zoning 
ordinances  and  deed  restrictions  will 
probably  revolve.  The  courts  examine 
carefully  the  present  circumstances  in 
the  area  in  question  and  on  this  basis 
decide  whether  a  change  in  use  is  desir- 
able. In  general  it  may  be  said  that  the 
courts  are  not  likely  to  encourage  more 
rapid  change  from  one  use  to  another 
than  would  take  place  in  the  normal 
course  of  events. 

A  second  consideration  in  the  Lud- 
gate v.  Somerville  opinion  involved  the 
relation  of  police  power  regulations  to 
existing  lawful  agreements.  The  court 
stated  that  "the  police  power  is  not  to  be 
exercised  to  thwart  or  nullify  lawful 
agreements  which  in  no  way  operate  to 
the  detriment  of  the  public  welfare."11 
A  similar  statement  is  found  in  an  Illi- 
nois case. 

"Notwithstanding  said  ordinance  the 
owners  of  said  lots  have  the  constitutional 
right  to  make  use  of  them  in  accordance 
with  such  restrictions,  so  long  as  they  do  not 
endanger  or  threaten  the  safety,  health  and 
comfort  or  general  welfare  of  the  public."12 

The  third  point  of  significance  in  the 
Oregon  opinion  is  the  statement  to  the 
effect  that  restrictive  agreements  give 
the  property  owner  rights  which  cannot 
be  divested  by  such  legislation  as  a 
zoning  ordinance.  Here  again  an  inter- 
esting parallel  is  found,  this  time  in  a 
Massachusetts  opinion  which  states  that 


11  Supra  n.  9  at  1045. 

12  Gordon  v.  Caldwell,  235  111.  App.  170  (1924). 


78 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


the  zoning  law  cannot  constitutionally 
relieve  land  within  the  district  covered 
by  it  from  lawful  restrictions  affecting 
its  use  .  .  .13  Although  the  evidence  is 
scanty,  the  conclusion  may  be  reached 
from  the  cases  cited  that  the  courts 
consider  restrictive  covenants  as  creating 
property  rights  which  are  enforceable 
so  long  as  they  do  not  contravene  the 
public  welfare  and  are  not  inequitable 
in  their  operation. 

The  legal  problems  involved  in  the 
relationship  between  zoning  and  deed 
restrictions  are  only  just  coming  to  the 
fore.14  Zoning  is  still  in  the  experimental 


13  Vorenberz  v.  Bunnell.  257  Mass.  399,  153  N.  E. 
884,  at  887  (1926). 

14  See  M.  T.  Van  Hecke,  "Zoning  Ordinances  and 
Restrictions  in  Deeds",  37  Yale  Law  Journal  407-425 
(February,  1928).  This  article,  which  is  written  from 
the  zoning  point  of  view,  is  an  able  discussion  of  the 
uses  to  which  each  of  these  control  devices  may  be  put, 
the  administrative  methods  of  each  and  the  effect  of 
one  upon  the  other. 


stage.  Its  relation  to  deed  restrictions 
and  other  older  forms  of  control  has  still 
to  be  worked  out.  The  significance  of 
the  relatively  new  device,  the  subdivi- 
sion control  ordinance,  is  not  yet  clear. 
It  may  be  that  such  ordinances  will 
afford  the  means  of  adjustment  between 
the  various  devices  for  regulating  the 
development  of  urban  areas. 

The  fact  remains,  however,  that  deed 
restrictions  seem  likely  to  continue  for 
some  time  to  be  an  important  force  in 
controlling  the  development  of  urban 
land.  They  constitute  a  control  device 
which  is  available  to  all  and  which  is 
adaptable  to  a  variety  of  situations. 
But  more  important  is  the  established 
legal  status  of  deed  restrictions.  The  at- 
titude of  the  courts  is  fairly  clearly  de- 
fined in  all  jurisdictions,  and  subdividers 
and  purchasers  are  familiar  with  this 
method  of  control  and  feel  confident  of 
its  permanency  and  soundness. 


TABLE  OF  DEEDS  ANALYZED 


Alleghany  Furnace,  Baker  Estates,  Altoona, 
Pa. 

Ardmore,  J.  R.  Robertson  &  Co.,  Chicago, 
111. 

Arlington  Park,  Bert  H.  Laudermilk  Realty 
Ass'n,  Chicago,  111. 

Armour  Hills,  J.  C.  Nichols  Inv.  Co.,  Kansas 
City,  Mo. 

Anchorage  Heights,  Anchorage,  Ky. 

Ashburton,  G.  R.  Morris  Org'n.,  Baltimore, 
Md. 

Andrews  Subdivision,  New  Britain,  Conn. 

Avon  Center  Estates,  H.  F.  Bowse,  Cleve- 
land, Ohio. 

Aspinwall  Hill  Subdivision,  Brookline,  Mass. 

Barton  Hills,  Ann  Arbor,  Mich. 

Best  Manor,  Fred  T.  Wood  Co.,  Oakland, 
Cal. 

Beacon  Falls,  Beacon  Falls,  Conn. 

Belmont  Country  Club,  A.  T.  Mcintosh 
Co.,  Chicago,  111. 

Bonelli-Adams  Co.,  Boston,  Mass. 

Bonnycastle  Terrace,  Louisville,  Ky. 

Brown  Section,  Thorpe  Bros.,  Minneapolis, 
Minn. 

Brookline     Hills     Subdivision,     Brookline, 

Cityco  Mass.  Realty  Co.,  Baltimore,  Md. 

Cuyahoga  View  Heights,  Hoiles  &  Hedden 
Co.,  Cuyahoga  Falls,  Ohio. 

Colony  Hills,  Springfield,  Mass. 

Cravath  Subdivision,  Locust  Valley,  L.  I. 

Cushings  Island,  Casco  Bay,  Me. 

Deven  Heights,  Hogle  and  Mawdsley,  Car- 
mel,  Cal. 

Devonshire  Manor  Annex,  Krenn  &  Dato, 
Inc.,  Chicago,  111. 

Devonshire  Manor,  Krenn  &  Dato,  Inc., 
Chicago,  111. 

Diana  Gardens,  S.  S.  Berry,  Chicago,  111. 

Estudillo  Estates,  Fred  T.  Wood  Co.,  Oak- 
land, Cal. 

Fairview  Addition,  Chas.  P.  Gray  Co.,  Chi- 
cago, 111. 

Fairway  Section,  Thorpe  Bros.,  Minneapo- 
lis, Minn. 

Forest  Hills  Gardens,  Sage  Foundation 
Homes,  L.  I. 

Fernside,  Fred  T.  Wood  Co.,  Oakland,  Cal. 

Freeman  Subdivision,  Providence,  R.  I. 

Gatewood  Gardens,  R.  C.  Erskine  &  Co., 
Seattle,  Wash. 

Great  Neck  Hills,  Great  Neck,  L.  I. 

Glen  Oaks,  Guy  M.  Rush,  Los  Angeles,  Cal. 

Guilford,  Baltimore  County,  Md. 


Gwin  Unit,  Fred  T.  Wood  Co.,  Oakland,  Cal. 

Harroun  Park  Subdivision,  Currier  Invest- 
ment Co.,  Detroit,  Mich. 

Highland  Park  Addition,  Krenn  &  Dato, 
Inc.,  Chicago,  111. 

Howard-Lincoln  Subdivision,  Krenn  &  Dato, 
Inc.,  Chicago,  111. 

Hunting  Ridge,  Geo.  R.  Morris  Org'n.,  Bal- 
timore, Md. 

Indian  Hill  Estates,  Bills  Realty  Co.,  Chi- 
cago, 111. 

Kenilworth  Highlands  Subdivision,  Wittbold 
Realty  Co.,  Chicago,  111. 

A.  H.  Kraus  Co.,  Chicago,  111. 

Lake  Wauconda,  Perry  Park,  Colo. 

Laudermilk  Villa,  Bert  H.  Laudermilk  Realty 
Ass'n,  Chicago,  111. 

Lake  Shore  Highlands,  Oakland,  Cal. 

Locust  Hills,  Blair  Home  Co.,  Altoona,  Pa. 

Licton  Springs  Park,  Seattle,  Wash. 

Maple  Hill,  F.  B.  McKibbin  Co.,  Lansing, 
Mich. 

Manito  Park,  Spokane,  Wash. 

Justin  Matthews  Co.,  Little  Rock,  Ark. 

Milwaukee -Howard -Harlem  Subdivision, 
Krenn  &  Dato,  Inc.,  Chicago,  111. 

Mountain  Lake,  Lake  Wales,  Florida 

Morningside  Heights,  R.  C.  Erskine  &  Co., 
Seattle,  Wash. 

Newton  Blvd.  Subdivision,  Newton,  Mass. 

Oak  Hill  Village,  Arnold  Hartman,  Boston, 
Mass. 

Oyster  Harbor,  Inc.,  F.  W.  Norris  Co.,  Bos- 
ton, Mass. 

Pacific  Southwest  Bank,  Los  Angeles,  Cal. 

Palos  Verdes  Estates,  Los  Angeles,  Cal. 

Redmont  Park,  Jemison  &  Co.,  Birmingham, 
Ala. 

Roland  Park,  Baltimore  County,  Md. 

St.  Francis  Wood,  Mason-McDuffie  Co.,  San 
Francisco,  Cal. 

Sackett  Subdivision,  Louisville,  Ky. 

Scarsdale  Estates,  New  York  City 

Sudbrook,  Baltimore  County,  Md. 

Shaker  Heights,  Van  Sweringen  Co.,  Cleve- 
land, Ohio 

Sunalta,  Calgary,  Alberta 

Sunrise  Addition,  R.  C.  Erskine  &  Co.,  Se- 
attle, Wash. 

Sunnymede,  Whitcomb  &  Keller,  South 
Bend,  Ind. 

Sunnyside,  City  Housing  Corp.,  New  York 
City 

Tavern  Acres,  N.  Andover,  Mass. 


8o 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Tilden  Realty  Corp.,  Utica,  N.  Y. 

S.  Bloomfield  Highlands,  Michigan  Inv.  Co., 

Detroit,  Mich. 
Sunset  Hill,  ].  C.  Nichols  Inv.  Co.,  Kansas 

City,  Mo. 
Uplands,  Victoria,  B.  C. 
Uplands,  Wellesley,  Mass. 
Valencia  Park,  Bowie  &  Trent,  San  Benito, 

Tex. 


Vanderlip  Subdivision,  Scarborough,  N.  Y. 
Vinsetta  Park    Subdivision,  Vinsetta  Land 

Co.,  Detroit,  Mich. 
Wagner-Thoreson  Co.,  Los  Angeles,  Cal. 
Woodmar,  Woodmar  Realtv  Co.,  Hammond, 

Ind. 
Westchester,  William  Zelosky,  Chicago,  111. 
Westwood   Subdivision,   Van   Alstine  Land 

Co.,  Detroit,  Mich. 


TABLE  OF  CASES  CITED 


Allen  v.  City  of  Detroit,  167  Mich.  464  (191 1) 
Anderson  v.  Stewart,  285  111.  605  (191 8) 
Bacon  v.  Sandberg,  179  Mass.  396,  60  N.  E. 

93  (1901) 
Berry  man  v.  Hotel  Savoy  Co.,  160  Cal.  559 

(1911) 
Buchanan  v.  Warley,  245  U.  S.  60  (1917) 
Castleman  v.  Avignone,  56  App.  D.  C.  253 

(1926) 
Columbia  College  v.  Thatcher,  87  N.  Y.  311 

(1882) 
Cooperative    Vineyards   Co.    v.   Ft.    Stockton 

Irrigated  Lands   Co.,    158    S.   W.    1191 

(Tex.  Civ.  App.  1 913) 
Corrigan  v.  Buckley,  271  U.  S.  323,  70  L.  ed. 

969  (1925) 
Cornell  v.  Colorado  Springs  Co.,  100  U.  S.  55 

(1879) 
Curtis  v.  Rubin,  244  111.  88  (1910) 
Druecker  v.  McLaughlin,  235  111.  367,  85  N. 

E.  647  (1908) 
Easterbrook  v.  Hebrew  L.  Orphan   Soc,   85 

Conn.  289  (1912) 
Eckhartv.  Irons,  128  111.  568  (1889) 
Erichsen  v.  Tapert,  172  Mich.  457  (191 2) 
Ewersten  v.  Gerstenberg,  186  111.  344  (1900) 
Forstmann  v.  Joray  Holding  Co.,  244  N.  Y. 

22  (1926) 
Fry^  v.  Partridge,  82  111.  267  (1876) 
Godley  v.  Weisman,  113  Minn.  1  (1916) 
Gordon  v.  Caldwell,  235  111.  App.  170  (1924) 
Harmon  v.  Burow,  263  Pa.  188  (191 9) 
Henderson  v.  Champion,  83  N.  J.  Eq.  554, 

91  Atl.  332  (1914) 
Highland  Realty  Co.  v.  Groves,  130  Ky.  374, 

113  S.  W.  420  (1908) 
Hutchinson  v.  JJlrich,  145  111.  336  (1893) 
Jackson  v.  Stevenson,  156  Mass.  496  (1892) 
Janss  Investment  Co.  v.  Walden,  196  Cal.  753, 

239  Pac.  34  (1925) 
Johnson  v.  //^jj,  126  Ind.  298  (1890) 
Johnson  v.  Jones,  244  Pa.  St.  386  (1914) 
JoweJ  v.  Northwest  Real  Estate  Co.,  149  Md. 

271,  131  Atl.  446  (1925) 
Jones  v.  PotV  Huron  Engine  Co.,  171  III.  502 

(1898) 
jW;/  v.  Robinson,  41  Colo.  222  (1907) 
Killien  v.  Goodman,  229  Mich.  393  (1924) 
Kneip  v.  Schroeder,  255  111.  621  (191 2) 
iCofA  v.  Streuter,  232  111.  594  (1908) 
Koehler  v.  Rowland,  275   Mo.   573,   (191 8) 
Kramer  v.  Nelson,  189  Wis.  560  (1926) 
Landsberg  v.  Rosenwasser,   124  N.  Y.  App. 

Div.  559  (1928) 


Leonard  v.  Hotel  Majestic  Co.,  17  N.  Y.  Misc. 

229,  40  N.  Y.  Supp.  1044  (1896) 
Library  Neighborhood  Assn.  v.  Goosen,  229 

Mich.  89  (1924) 
Los  Angeles  Investment  Co.  v.  Gary,  181  Cal. 

680,  186  Pac.  596  (1920) 
Ludgate  v.  Somerville,  ill  Ore.  643,  256  Pac. 

1043  (1927) 
McCusker  v.  Goode,  185  Mass.  607  (1904) 
McNeil  v.  Gary,  40  App.  D.  C.  397  (1913) 
McNichol  v.    Townsend,  73  N.  J.  Eq.   276 

(1907) 
Melson  v.  Ormsby,  169  la.  522  (191 5) 
Minard  v.  Delaware,  Lackawanna  &  Western 

Railroad  Co.,  139  Fed.  60  (1905) 
Minkus  v.  Pond,  326  111.  467,  158  N.  E.  121 

(1927) 
Mitchell  v.  Leavitt,  30  Conn.  587  (1862) 
Moore  v.  Curry,  176  Mich.  456;  142  N.  W. 

839  (1913) 
Nee  tow  v.  City  of  Cambridge,  Mass.,  No.  509 

U.  S.  Sup.  Ct.,  72  L.  ed.,  48  Sup.  Ct. 

Rep.  (Decided  May  14,  1928) 
Ocean  City  Assn.  v.  Chalfant,  65  N.  J.  Eq. 

156,  55  Atl.  801  (1903) 
Page  v.  Murray,  46  N.  J.  Eq.  325  (1890) 
Parmalee  v.  Morris,  218  Mich.  624  (1922) 
Peabody  Heights  Co.  v.  Willson,  82  Md.  186 

(1895) 
Porter  v.  Barrett,  233  Mich.  373  (1925) 
Post  v.  Weil,  115  N.  Y.  361  (1889) 
Randall  v.  Atlanta  Adv.  Serv.,  159  Ga.  217 

(1924) 
River  Bank  Imp.  Co.  v.  Bancroft,  209  Mass. 

217,  95  N.  E.  216  (1911) 
Sanford  v.  Keer,  80  N.  J.  Eq.  240,  83  Atl. 

225  (1912) 
Schoonmaker  v.  Hecksher,   171   N.  Y.  App 

Div.  148,  157  N.  Y.  Supp.  75  (1916) 
Sharp  v.  Ropes,  no  Mass.  381  (1872) 
Simpson  v.  Mikkelsen,  196  111.  575  (1902) 
Skinner  v.  Shepard,  130  Mass.  180  (1881) 
Stevens  v.  Annex  Realty  Co.,   173  Mo.   511 

(1900) 
Summers  v.  Beeler,  90  Md.  475  (1899) 
^aw  iStfW/  v.  Rose,  260  111.  401  (1913) 
Vorenberg  v.   Bunnell,  ic,-j  Mass.  399,   153 

N.  E.  884  (1926) 
Welch  v.  Swasey,  193  Mass.  364  (1907) 
Wiegman  v.  Kusel,  270  111.  520  (191 5) 
Wood  v.  Stehrer,  119  Md.  143,  86  Atl.  128 

(1912) 
Wright  v.  Pjrimmer,  99  Neb.  447  (1916) 
Zinn  v.  Sidler,  268  Mo.  680  (1916) 
Zipp  v.  Barker,  55  N.  Y.  Supp.  246  (1898) 


INDEX 


A 

Abatement  of  restrictions,  right  to 64 

Administration  of  restrictions 

see  Building  plans,  Duration,  Enforcement,  Ex- 
tension, Maintenance  charges 
Alienation 

validity  of  restraints  on 46 

see  also  Racial  restrictions 

Alterations,  approval  of .   35 

Apartment  uses 

see  Residential  uses 

Architectural  control 12,  36,  37 

Area  restrictions 

further  Subdivision 44,  45 

percentage  of  lot  area  covered 44 

size  of  lots 12,  44,  45 

Art  jury 36 

Assignment  of  powers 55 

B 

Borrowing,  affected  by  restrictions 74 

Building  codes 7 

Building  lines 

classifications  of 38 

importance  of 37 

location  of  outbuildings 43 

platting  of 12 

setback 38 

Building  plans,  approval  of 34 

administration  of 35~3^> 

as  selling  asset 35 

compared  with  architectural  control 37 

legality 36 

Business  uses 

see  Commercial  uses 


Chicago  lake  front,  restrictions  on 1 

Commercial  uses 

location 1 1-12 

prohibition  of 32 

Community  Associations 
see  Owners'  Associations 

Community  features 

effect  of  type  of  development 10 

interior  parkways 13 

plan  for I3~i4 

recreational  areas II,  13,  14 

school  sites 13 

Condition  subsequent 

distinguished  from  covenant 18-19 

method  of  drafting 19-20 

when  to  use 20,  65 

see  also  Remedies 

Control  of  urban  development 

need  for 3-4 

purposes  of 4-5 

see  also  Planning 

Cost  of  buildings 37 

Courts 

attitude  toward  restrictions 19,  25 

see  also  Enforcement 


Covenant 

distinguished  from  condition 18-19 

when  to  use 19,  65 

see  also  Remedies 

Covenants  running  with  the  land 20 


D 

Damages 
see  Remedies 

Deed 

definition 16 

essential  parts 17 

provisions  regarding  zoning 70 

Deed  restrictions 

compared  with  zoning 74_78 

methods  of  imposing 14 

release  of 24 

right  to  impose 17 

see  also  Control  of  urban  development;  Courts; 
Zoning 

Developer's  plan 

as  basis  of  restrictions 14 

defined 8 

factors  conditioning 9-10 

items  in 10-14 

significance  in  city  plan 8 

survey  as  prerequisite 9 

Duration  of  restrictions 

average  duration 56 

determination  of 57-59>  61 

effect  on  land  values 73 

see  also  Extension  of  restrictions 


Easements 13,  43,  52 

Enforcement 
considerations  in 

changing  character  of  district 23-24 

covenant  or  condition 1 8-20 

doctrine  of  notice 21 

effect  of  general  plan 23 

intention  of  parties 23 

privity  of  contract 22,  25 

privity  of  estate 22,25 

right  of 22,  62-64 

see  also  Remedies 

Equitable  easements 25 

Extention  of  restrictions 60-61 


Garages 

see  Outbuildings 
Golf  courses 

see  Community  features,  recreational  areas 


H 


Height  of  buildings 

Homes'  Associations 
see  Owners'  Associations 


•36,37 


INDEX 


83 


1 


sociations 

see  Owners'  Associations 
Improvements 

important       •       nning. . . . 

provisions  for  installation.  . 
Injun; 

see  Remedies 

see  also  Enforcement 
Interior  parkways 

see  Community  features 
Interpretation  oi  restrictions 

see  Courts;  Enf.  rcement 


...13 

52,53 


L 

65 

Land 

characteristics  of 4-5 

production  ot,  defined 3 

ling 

see  Planning 
Land  uses 

distribution  of 11 

ommercial  uses;  Residential  uses 
Land  values 

affected  b;    duration  of  restrictions 73 

effect  of  planning 12 

stabilization  of 5 

Legal  aspects 

summarized 24-26 

see  also  Courts;  Enforcement 

Location  of  subdivision,  effect  on  plan 9,  10 

Lots 

um  area 45 

minimum  frontage 44 

see  also  Area  restrictions 

M 

Maintenance  charges 66-67 

bounds  subdividing,  statutory  prohibi- 
tion.       7 

of  restrictions 54-55,  62 

Mortgages 

see  Borro . 
Multi-family  uses 
see  Residential  uses 

N 

Notice,  doctrine  of 21 

see  also  Enforcement 

uisances,  restrictions  on 27 

O 

gality  of  restrictions  on 49 

I  rictions  on 23 

Owner!  :>ns 

duties  35,  67,  70 

organization  of 68 

Ownership,  restraints  on 
see  Alienation 


Parks 

imunity  features,  recreational  areas 


Planning 
city 

development  of 2-3 

sets  minimum  standards 7 

subdivision 

development  of 2—3 

supplementing  city  planning 6 

see  also  Developer's  plan 
Playgrounds 

see  Community  features,  recreational  areas 

Privity  of  contract 22,  25 

see  also  Enforcement 

Privity  of  estate 22,  25 

see  also  Enforcement 

Protection  of  investment  by  restrictions 73,  74 

see  also  Land  values 

R 

Racial  restrictions 

constitutionality 47 

form  of  restriction 51 

geographical  distribution 50 

prevalence 46 

Recording  of  restrictions 20 

Recreational  areas 

see  Community  features 
Re-entry 

see  Remedies 

see  also  Enforcement 
Releasing  restrictions 

methods  of 24 

results  of 61 

Remedies 

at  law 

re-entry 18,  19,  65 

damages 18,19 

in  equity 

injunction 1 8,  1 9,  64 

see  also  Enforcement 
Residential  uses 

apartments,  location 12 

multi-family  residences,  location 12 

single-family  residences 

definition  of 32 

location 12 

Relation  of  subdivision  to  adjacent  area,  effect  on 

plan 9-10 

Reversion  of  title 

see  Remedies 

S 

School  sites 

see  Community  features 

Selection  of  area,  effect  on  plan 9,  10 

Setback 

see  Building  lines 

Single-family  uses 
see  Residential  uses 

Streets 

joining  subdivision  to  adjacent  area 11 

within  subdivision 11 

see  also  Building  lines 

Subdivider 

aims  in  sale  of  land 72 

in  enforcement  of  restrictions 62,  64 

powers 54 

Subdivision,  distinguished  from  "subdivision  devel- 
opment"       8 


84 


DEED  RESTRICTIONS  IN  SUBDIVISION  DEVELOPMENT 


Subdivision  control  ordinances 

as  working  rules 7 

development  of  78 

T 

Time  limit  for  building,  restrictions  on 34 

Topography,  effect  on  developer's  plan 9 

Transportation 

effect  on  developer's  plan 9 

importance  in  control 3 

U 

Urbanization,  rate  of 

as  need  for  land  control 3 

Utilities 

see  Improvements 


V 

Value 

see  Land  Values 

Violation  of  restrictions 61,  73 

modification  as  grounds  for 54,  55 

see  also  Enforcement 

W 

Working  rules  of  subdividers 

z 

Zoning 

contrasted  with  restrictions 74 

ordinances  as  working  rules 7 

ordinances  referred  to  in  deeds 70 

relation  to  developer's  plan 10 


jLINOIS  historical  survey 


ILLINOIS  HISTORICAL  SURVEY 


ILLINOIS  HISTORICAL  SURVEY 


UNIVERSITY  OF  ILLINOIS-URBANA 

710.1M74U  C001 

THE  USE  OF  DEED  RESTRICTIONS  IN  SUBDIVIS 


3  0112  025317659 


